IOU CENTRAL INC. BORROWER PAYMENT DEPENDENT NOTES INDENTURE

Exhibit 4.3

IOU CENTRAL INC.

BORROWER PAYMENT DEPENDENT NOTES

INDENTURE

DATED AS OF              , 2009

                                                              ,

AS TRUSTEE

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INDENTURE dated as of              , 2009, by and between IOU Central Inc., a Delaware corporation (“ Company ”), and                      , a                      incorporated and existing under the laws of the United States of America, as trustee (“ Trustee ”).

RECITALS OF THE COMPANY

The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of special limited obligations of the Company referred to as Borrower Payment Dependent Notes (herein called the “ Securities ”) to be issued in series as in this Indenture provided.

For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and ratable benefit of the Holders of the Securities or each series thereof as follows:

ARTICLE I

DEFINITIONS AND INCORPORATION BY REFERENCE

Section 1.1 Definitions .

“ ACH System ” means the Automated Clearing House system of the U.S. Federal Reserve Board or a successor system providing electronic funds transfers between banks.

“ Affiliate ” of any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, “Control” when used with respect to any specified person means the power to direct or cause the direction of the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “Controlling” and “Controlled” have meanings correlative to the foregoing.

“ Board of Directors ” means the board of directors of the Company or any committee of such board authorized with respect to any matter to exercise the powers of the Board of Directors of the Company.

“ Board Resolution ” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

“ Borrower ” means a registered borrower on the Loan Marketplace.

“ Borrower Loan ” means a Registered Borrower Loan.

“ Borrower Loan Net Payments ,” with respect to a Borrower Loan, means all Borrower Loan Payments net of the applicable Servicing Fee and any amounts due to the Company on account of the portion of the Borrower Loan, if any, funded by the Company.

 

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“ Borrower Loan Payments ,” with respect to a Borrower Loan, means all amounts received by the Company, and not reversed through the ACH System or by virtue of checks returned unpaid due to insufficient funds or for other reasons, in connection with the repayment of such Borrower Loan, including, without limitation, all payments or prepayments of principal and interest, any late fees and any amounts received by the Company upon collection efforts; provided , however , that Borrower Loan Payments shall not include any Non-sufficient Funds Fees or fees charged to the Registered Borrower for making payments in a manner other than as provided in the Borrower Loan received by the Company in respect of such Borrower Loan, any amounts due to the Company on account of the portion of the Borrower Loan, if any, funded by the Company in its capacity as a registered lender on the Loan Marketplace, or attorneys’ fees or any collection fees imposed in connection with collection efforts on a delinquent Borrower Loan by the Company or by a third-party collection agency.

“ Business Day ” means, except as otherwise specified as contemplated by Section 2.2(c) , with respect to any Place of Payment or any other particular location referred to in this Indenture or in the Securities, each Monday, Tuesday, Wednesday, Thursday and Friday that is (i) not a day on which the ACH System is closed and (ii) not a day on which banking institutions are authorized or obligated by law or executive order to close in New York, New York.

“ Capital Stock ” for any corporation means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) stock issued by that corporation.

“ Company ” means the party named as the “Company” in the first paragraph of this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor.

“ Company Request ” or “ Company Order ” means a written request or order signed in the name of the Company (i) by its Chairman of the Board, a Vice Chairman, its Chief Executive Officer, its President or a Vice President, and (ii) by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee or, with respect to Sections 2.1 , 2.2(c) , 2.3 , and 6.2 , any other employee of the Company named in an Officers’ Certificate delivered to the Trustee.

“ Default ” means any event which is, or after notice or passage of time or both would be, an Event of Default.

“ Dollar ” or “ $ ” means a dollar or other equivalent unit in such coin or currency of the United States as at the time shall be legal tender for the payment of public and private debts.

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

“ Final Maturity ” means the date on which the Initial Maturity Date may be extended, as provided in any Security.

“ Holder ” or “ Securityholder ,” when used with respect to any Security, means, the person in whose name a Security is registered on the Registrar’s books.

 

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“ Indenture ” means this Indenture, as amended or supplemented from time to time in accordance with the terms hereof and shall include the terms of a particular series of Securities established as contemplated in Section 2.2(c) .

“ Initial Maturity Date ” means the scheduled date on which the final installment of principal and interest is payable on any Security.

“ Interest Payment Date ,” when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.

“ Loan Marketplace ” means the Company’s online loan marketplace on the Company’s website www.ioucentral.com or any successor website.

“ Maturity ,” when used with respect to any Security, means the date on which an installment of Principal thereof or interest thereon becomes due and payable as therein or herein provided, whether at the Stated Maturity, Initial Maturity or Final Maturity, by declaration of acceleration, or otherwise.

“ Non-sufficient Funds Fees ” means any fee imposed by the Company in respect of a Borrower Loan when the Company’s payment request is denied for any reason, including, but not limited to, non-sufficient funds in the Registered Borrower’s bank account or the closing of such bank account.

“ Officer ” means the Chairman of the Board, any Vice Chairman, the Chief Executive Officer, the President, any Vice President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary of the Company.

“ Officers’ Certificate ” means a written certificate containing the information specified in Sections 9.4 and 9.6 , signed in the name of the Company (i) by its Chairman of the Board, a Vice Chairman, its Chief Executive Officer, its President or a Vice President, and (ii) by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.

“ Opinion of Counsel ” means a written opinion containing the information specified in Sections 9.4 and 9.6 , from legal counsel who is acceptable to the Trustee. The counsel may be an employee of, or counsel to, the Company or the Trustee.

“ Payment Date ” means any Principal Payment Date or Interest Payment Date.

“ Person ” means any individual, corporation, partnership, joint venture, association, joint-stock company, limited liability company, trust, unincorporated organization, or government or any agency or political subdivision thereof.

“ Place of Payment ,” when used with respect to the Securities of any series, means the place or places where, subject to the provisions of Section 3.5 , the Principal of, and any interest on, the Securities of that series are payable as specified as contemplated by Section 2.2(c) .

“ Platform ” means the Company’s online loan marketplace.

 

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“ Principal ” or “ Principal Amount ” of a Security, except as otherwise specifically provided in this Indenture, means the outstanding principal of the Security.

“ Principal Payment Date ,” when used with respect to any Security, means the Stated Maturity of an installment of Principal on such Security.

“ Record Date ” for the amounts payable on any Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 2.2(c) .

“ Registered Borrower ” means an individual registered borrower on the Loan Marketplace.

“ Registered Borrower Loan ” means a loan to a Registered Borrower originated through the Loan Marketplace, but only to the extent such Borrower Loan has been financed by the Company with the proceeds of the Securities.

“ SEC ” means the Securities and Exchange Commission.

“ Securities ” has the meaning stated in the first recital of this Indenture and, more particularly, means any Securities authenticated and delivered under this Indenture.

“ Securities Act ” means the Securities Act of 1933, as amended.

“ Securityholder ” or “ Holder ,” when used with respect to any Security, means a person in whose name a Security is registered on the Registrar’s books.

“ Servicing Fee ” means, with respect to any Borrower Loan, an annualized rate equal to 1.0% of the remaining principal balance of the Borrower Loan.

“ Stated Maturity ,” when used with respect to any installment of Principal thereof or interest thereon, means the date specified in such Security as the fixed date on which an amount equal to such installment of Principal thereof or interest thereon is due and payable.

“ Subsidiary ” means, with respect to any person, a corporation of which a majority of the Capital Stock having voting power under ordinary circumstances to elect a majority of the board of directors of such corporation is owned by (i) such person, (ii) such person and one or more Subsidiaries or (iii) one or more Subsidiaries of such person.

“ TIA ” means the Trust Indenture Act of 1939 as in effect on the date of this Indenture, except as provided in Section 8.3 .

“ Trust Officer ” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

 

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“ Trustee ” means the party named as the “Trustee” in the first paragraph of this Indenture until a successor replaces it pursuant to the applicable provisions of this Indenture and, thereafter, shall mean such successor.

“ United States ” means the United States of America, its territories, its possessions (including the Commonwealth of Puerto Rico), and other areas subject to its jurisdiction.

Section 1.2 Other Definitions .

 

Section 1.3 Incorporation by Reference of Trust Indenture Act . Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:

“ Commission ” means the SEC.

“ Indenture Securities ” means the Securities.

“ Indenture Security Holder ” means a Holder or Securityholder.

“ Indenture to be Qualified ” means this Indenture.

“ Indenture Trustee ” or “ Institutional Trustee ” means the Trustee.

“ Obligor ” on the indenture securities means the Company.

All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule have the meanings assigned to them by such definitions.

Section 1.4 Rules of Construction . Unless the context otherwise requires:

(a) a term has the meaning assigned to it;

 

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(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles in the United States as in effect from time to time;

(c) “or” is not exclusive;

(d) “including” means including, without limitation; and

(e) words in the singular include the plural, and words in the plural include the singular.

ARTICLE II

THE SECURITIES

Section 2.1 Forms Generally . The Securities of each series and the certificate of authentication in respect thereof shall be in substantially the form set forth on Exhibit A as shall be established by delivery to the Trustee of a Company Order, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be determined by the Officers executing such Securities as evidenced by their execution of the Securities. The Securities shall be in fully registered form only and shall be printed, lithographed, engraved, word processed or evidenced in electronic form or produced by any combination of these methods or may be produced in any other manner, all as determined by the Officers executing such Securities as evidenced by their execution of such Securities.

Section 2.2 Title, Terms and Denominations .

(a) The aggregate Principal Amount of Securities that may be authenticated and delivered under this Indenture shall be unlimited.

(b) To the extent provided in, and except as otherwise permitted by, this Indenture, (i) the Securities shall be special limited obligations of the Company, and (ii) no payments of Principal and interest on the Securities of any series shall be payable unless the Company has received Borrower Loan Payments in respect of the Borrower Loan corresponding to such series, and then shall be payable equally and ratably on the Securities of such series only to the extent of the Borrower Loan Net Payments related to the Borrower Loan corresponding to such series. No Holder of a Security shall have any recourse against the Company unless and then only to the extent that the Company (1) has failed to pay such Holder the Borrower Loan Net Payments in respect of the Borrower Loan corresponding to such Holder’s Security, or (2) has otherwise breached a covenant in this Indenture.

(c) For each series of Securities there shall be established and, subject to Section 2.3 , set forth, or determined in the manner provided, in a Company Order:

(i) the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);

 

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(ii) the limit upon the aggregate Principal Amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of Securities of the series pursuant to Sections 2.7 or 8.5 );

(iii) the Borrower Loan that corresponds to Securities of the series;

(iv) the Stated Maturity and Payment Dates of the Securities of the series and the Record Date for any amounts payable on any Payment Date;

(v) the stated rate at which each Security of the series shall bear interest, which rate shall equal the rate the Holder bid and the Registered Borrower accepted for the Borrower Loan;

(vi) the place or places where, subject to the provisions of Section 3.5 , the Principal of, and or interest on, Securities of the series shall be payable, any Securities of the series may be surrendered for registration of transfer and notices and demands to or upon the Company in respect of the Securities of the series and this Indenture may be served;

(vii) any restrictions on the transfer or transferability of Securities of the series;

(viii) the obligation, if any, of the Company to redeem Securities of the series at the option of a Holder thereof, the conditions, if any, giving rise to such obligation, and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series shall be purchased, in whole or in part;

(ix) the denominations in which any Securities of the series shall be issuable, if other than denominations of $25 and any integral multiple thereof;

(x) any addition to or change in the Events of Default which apply to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 5.2 ;

(xi) any addition to or change in the covenants set forth in Article III which apply to Securities of the series;

(xii) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 8.1(g) ); and

(xiii) any endorsement reflecting the transfer of any Security upon resale of such Security.

All Securities of a series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to a Company Order pursuant to this Section 2.2(c)  or in any indenture supplemental hereto.

 

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(d) Prior to the issuance of the initial series of Securities under this Indenture, a copy of the Board Resolution authorizing the execution, delivery and performance of this Indenture shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of an Officers’ Certificate setting forth the general terms of the Securities. Such Board Resolution and Officers’ Certificate shall provide general terms for Securities and provide either that the specific terms of each series shall be specified in a Company Order or that such terms shall be determined by the Company, or one or more of the Company’s agents designated in an Officers’ Certificate, in accordance with the Company Order as contemplated by Section 2.3 .

(e) Unless otherwise provided as contemplated by Section 2.2(c)  with respect to any series of Securities, any Securities of a series shall be issuable in denominations of $25 and any integral multiple thereof.

Section 2.3 Execution, Authentication, Delivery and Dating . The Securities shall be executed on behalf of the Company by its Chairman of the Board, one of its Vice Chairmen, its Chief Executive Officer, President or one of its Vice Presidents, or the Treasurer or any Assistant Treasurer. The signature of any of these officers on the Securities may be electronic, manual or facsimile.

Securities bearing the electronic, manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.

At any time and from time to time after the execution and delivery of this Indenture (and subject to delivery of the Board Resolution and Officers’ Certificate as set forth in Section 2.2 prior to the issuance of the initial series of Securities), the Company may authenticate and deliver Securities of any series and upon such authentication and delivery, shall promptly provide a record of all such Securities executed and authenticated by the Company to the Trustee, together with a copy of the Company Order authorizing the authentication and delivery of such Securities;

In addition, prior to the issuance of the initial series of Securities, the Trustee shall receive, and shall be fully protected in conclusively relying upon, an Opinion of Counsel stating:

(a) that the forms of such Securities have been, and the terms of such Securities (when established in accordance with such procedures as may be specified from time to time in a Company Order, all as contemplated by and in accordance with a Board Resolution pursuant to Section 2.2(d) , as the case may be) will have been, duly authorized by the Company and established in conformity with the provisions of this Indenture;

(b) that such Securities, when (i) executed by the Company, (ii) completed, authenticated and delivered by the Company in accordance with this Indenture, and (iii) issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to customary exceptions; and

 

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(c) that all laws and requirements in respect of the execution and delivery by the Company of such Securities have been complied with.

The Trustee may conclusively rely, as to the authorization by the Company of any series of Securities, the form and terms thereof and the legality, validity, binding effect and enforceability thereof, upon the Opinion of Counsel and other documents delivered pursuant to Sections 2.1 , 2.2(c)  and 2.2(d)  and this Section 2.3 , as applicable, at or prior to the time of the first authentication of Securities of the initial series of Securities unless and until it has received written notification that such opinion or other documents have been superseded or revoked. In connection with the authentication and delivery of Securities, the Trustee shall be entitled to assume, unless it has received written notice to the contrary or any of its Trust Officers has actual knowledge to the contrary, that the Company’s authentication and delivery of such Securities do not violate any rules, regulations or orders of any governmental agency or commission having jurisdiction over the Company.

Each Security shall be dated the date of its authentication.

The Company may appoint an authenticating agent acceptable to the Trustee to authenticate Securities. Unless otherwise provided in the appointment, an authenticating agent may authenticate Securities whenever the Company may do so. Each reference in this Indenture to authentication by the Company includes authentication by such agent.

No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein duly executed by the Company by electronic or manual signature of an authorized signatory, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. The Company’s certificate of authentication shall be in substantially the following form:

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

Section 2.4 Registrar and Paying Agent . The Company shall maintain, with respect to each series of Securities, an office or agency where such Securities may be presented for registration of transfer or for exchange (“ Registrar ”) and an office or agency where such Securities may be presented for purchase or payment (“ Paying Agent ”). The Registrar shall keep a register of the Securities and of their transfer and exchange. The Company may have one or more co-registrars and one or more additional paying agents. The term Paying Agent includes any additional paying agent.

 

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The Company shall enter into an appropriate agency agreement with respect to each series of Securities with any Registrar, Paying Agent or co-registrar. The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of any such agent. The Company, any Subsidiary or an Affiliate of either of them may act as Paying Agent, Registrar or co-registrar.

The Company initially will serve as the Registrar and Paying Agent in connection with such Securities.

Section 2.5 Paying Agent to Hold Money and Securities in Trust . Except as otherwise provided herein, prior to or on each due date of payments in respect of any series of Securities, the Company shall deposit with the Paying Agent with respect to such Securities a sum of money sufficient to make such payments when so becoming due. The Company shall require each Paying Agent (other than the Trustee or the Company) to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent for the making of payments in respect of the Securities of such series and shall notify the Trustee in writing of any default by the Company in making any such payment. At any time during the continuance of any such default, a Paying Agent shall, upon the written request of the Trustee, forthwith pay to the Trustee all money so held in trust with respect to such Securities. If the Company, any Subsidiary or an Affiliate of either of them acts as Paying Agent for a series of Securities, it shall segregate the money held by it as Paying Agent with respect to such Securities and hold it as a separate trust fund. The Company at any time may require a Paying Agent for a series of Securities to pay all money held by it with respect to such Securities to the Trustee and to account for any money disbursed by it. Upon doing so, such Paying Agent shall have no further liability for the money.

Section 2.6 Securityholder Lists . The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders of each series of Securities. The Company shall cause to be furnished to the Trustee at least monthly on the first business day of each month a listing of Holders of each series of Securities dated within 15 days of the date on which the list is furnished and at such other times as the Trustee may request in writing a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Securityholders of each series of Securities.

Section 2.7 Transfer . Subject to any limitations on transferability set forth in a Security, upon surrender for registration of transfer of such Security at the office or agency of the Company designated pursuant to Section 3.5 for such purpose in a Place of Payment, the Company shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of any authorized denomination or denominations of a like aggregate Principal Amount and tenor. The Company may (a) impose a reasonable service fee for any registration of transfer or exchange, which service fee shall be described on the Company’s website www.ioucentral.com and may be changed or waived from time to time, and (b) require payment of a sum sufficient to pay all taxes, assessments or other governmental charges that may be imposed in connection with the transfer of the Securities from the Securityholder requesting such transfer.

 

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All Securities issued upon any registration of transfer of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer.

Every Security presented or surrendered for registration of transfer shall be accompanied by a written instrument of transfer in form satisfactory to the Company and the Registrar duly executed by the Holder thereof or his or her attorney by electronic or manual signature.

Section 2.8 Outstanding Securities; Determinations of Holders’ Action . Securities of any series “ Outstanding ” at any time are, as of the date of determination, all the Securities of such series theretofore authenticated by the Company for such series except for those cancelled by it, those delivered to it for cancellation and those described in this Section 2.8 as not outstanding. A Security does not cease to be “Outstanding” because the Company or an Affiliate thereof is the Holder of the Security; provided , however , that in determining whether the Holders of the requisite Principal Amount of Outstanding Securities have given or concurred in any request, demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be outstanding, except that, in determining whether the Trustee shall be protected in conclusively relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Trust Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any Affiliate of the Company. Subject to the foregoing, only Securities outstanding at the time of such determination shall be considered in any such determination.

If the Paying Agent (other than the Company) holds, in accordance with this Indenture, on the final Stated Maturity, money sufficient to pay Securities payable on that date in full, then on and after that date such Securities shall cease to be Outstanding.

Section 2.9 Cancellation . All Securities surrendered for payment, or registration of transfer, shall, if surrendered to any person other than the Company, be delivered to the Company and all Securities so delivered shall be promptly cancelled by it. The Company may at any time cancel any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever and may cancel any Securities previously authenticated hereunder that the Company has not issued and sold. The Company may not reissue, or issue new Securities to replace, Securities it has cancelled.

No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted in the form of Securities for any particular series or as permitted by this Indenture.

Section 2.10 Payments . Payment of Principal and interest on any Security which is payable, and is punctually paid or duly provided for, on any Payment Date shall be paid to the person in whose name that Security is registered at the close of business on the Record Date for such Payment Date.

 

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Any payments on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Payment Date (herein called “ Defaulted Payment ”) shall forthwith cease to be payable to the Holder on the relevant Record Date, and such Defaulted Payment may be paid by the Company to the Holder of the Security on a record date chosen by the Company and in any lawful manner, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this paragraph, such manner of payment shall be deemed practicable by the Trustee.

Subject to the foregoing provisions of this Section 2.10 and Section 2.7 , each Security delivered under this Indenture upon registration of transfer of any other Security shall carry the rights to payments which were carried by such other Security.

Section 2.11 Persons Deemed Owners . Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of Principal of, and interest on, such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

Section 2.12 CUSIP Numbers . The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.

ARTICLE III

COVENANTS

Section 3.1 Payment of Securities . The Company shall promptly make all payments in respect of each series of Securities in lawful money of the United States on the dates and in the manner provided in the Securities but solely from the sources provided pursuant to Section 2.2(b)  and, to the extent not otherwise so provided, pursuant to this Indenture. The Company shall have no liability or obligation with respect to the payment of the purchase price of any Securities except to the extent of the Borrower Loan Net Payments in respect of the Borrower Loan corresponding to such series. At the Company’s option, payments of Principal or interest may be made by check or by transfer into an account administered by the Company “for the benefit of” the payee or to an account maintained by the Trustee.

Section 3.2 SEC Reports . The Company shall file with the Trustee, within 15 days after it files such annual and quarterly reports, information, documents and other reports with the SEC, copies of its annual report and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company also shall comply with the other provisions of TIA Section 314(a).

 

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Section 3.3 Compliance Certificate; Statement by Officers as to Default . The Company shall deliver to the Trustee within 120 days after the end of each fiscal year (beginning with the fiscal year ending on December 31, 2009) an Officers’ Certificate, one of the signers of which shall be the principal executive officer, principal financial officer or principal accounting officer of the Company, stating whether or not the signers know of any Default that occurred during such period. If they do, such Officers’ Certificate shall describe the Default and its status.

The Company shall deliver to the Trustee, as soon as possible and in any event within five days after the Company becomes aware of the occurrence of any Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, an Officers’ Certificate setting forth the details of such Event of Default or default and the action which the Company proposes to take with respect thereto.

Section 3.4 Further Instruments and Acts . Upon request of the Trustee, the Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture.

Section 3.5 Maintenance of Office or Agency . The Company will maintain in each Place of Payment for such series an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The office of the Company at 1255 Roberts Boulevard, Suite 116, Kennesaw, Georgia 30188 shall be such office or agency for all of the aforesaid purposes unless the Company shall maintain some other office or agency for such purposes and shall give prompt written notice to the Trustee of the location, and any change in the location, of such other office or agency.

The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided , however , that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in accordance with the requirements set forth above for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

Section 3.6 Borrower Loan Servicing .

(a) With respect to each series of Securities, the Company shall use commercially reasonable efforts to service and collect the Borrower Loan corresponding to such series, in good faith, accurately and in accordance with industry standards customary for servicing loans such as the Borrower Loans. Notwithstanding the generality of the foregoing, (i) referral of a delinquent Borrower Loan to a collection agency on the 91 ^st day of its delinquency shall be deemed to constitute commercially reasonable servicing and collection

 

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efforts, and (ii) the Company shall have the right, at any time and from time to time, to amend or waive any term of such Borrower Loan, or in the case of a Borrower Loan that is more than 120 days delinquent, to cancel such Borrower Loan without the consent of any Holder of any Securities of the series corresponding to such Borrower Loan.

(b) With respect to each series of Securities, the Company shall use commercially reasonable efforts to maintain backup servicing arrangements providing for the Borrower Loan corresponding to such series to be serviced and collected in good faith, accurately and in accordance with industry standards customary for servicing loans such as the Borrower Loans.

ARTICLE IV

SUCCESSOR CORPORATION

Section 4.1 When Company May Merge or Transfer Assets . The Company shall not consolidate with or merge with or into any other person or convey, transfer or lease its properties and assets substantially as an entirety to any person, unless:

(a) either (i) the Company shall be the continuing corporation or (ii) the person (if other than the Company) formed by such consolidation or into which the Company is merged or the person which acquires by conveyance, transfer or lease the properties and assets of the Company substantially as an entirety (1) shall be a corporation, limited liability company, partnership or trust organized and validly existing under the laws of the United States or any state thereof or the District of Columbia, and (2) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of the Company under the Securities and this Indenture;

(b) immediately after giving effect to such transaction, no Default shall have occurred and be continuing; and

(c) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article IV and that all conditions precedent herein provided for relating to such transaction have been satisfied.

The successor person formed by such consolidation or into which the Company is merged or the successor person to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of the Company under this Indenture with the same effect as if such successor had been named as the Company herein; and thereafter, except in the case of a lease of its properties and assets substantially as an entirety, the Company shall be discharged from all obligations and covenants under this Indenture, and the Securities.

 

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ARTICLE V

DEFAULTS AND REMEDIES

Section 5.1 Events of Default . Unless otherwise specified as contemplated by Section 2.2(c)  with respect to any series of securities, an “ Event of Default ” occurs, with respect to each series of the Securities individually, if:

(a) the Company defaults, subject in each case, to the limitations set forth in Sections 2.2(b)  and 3.1 and in the Securities in the payment of any Principal of, or interest on, any Security of such series when the same becomes due and payable and continuance of such default for a period of 30 days;

(b) the Company fails to comply with any of its agreements in the Securities or this Indenture (other than those referred to in clause (a)  above and other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section 5.1 specifically dealt with or which has been expressly included in this Indenture solely for the benefit of a series of Securities other than such series) and such failure continues for 90 days after receipt by the Company of a Notice of Default; provided , however , that if the Company shall proceed to take curative action which, if begun and prosecuted with due diligence, cannot be completed within a period of 90 days, then such period shall be increased to such extent as shall be necessary to enable the Company diligently to complete such curative action;

(c) there shall have been the entry by a court of competent jurisdiction of (i) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Bankruptcy Law or (ii) a decree or order adjudging the Company bankrupt or insolvent, or seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or ordering the wind up or liquidation of its affairs, and any such decree or order for relief shall continue to be in effect, or any such other decree or order shall be unstayed and in effect, for a period of 60 consecutive days;

(d)(i) the Company commences a voluntary case or proceeding under any applicable Bankruptcy Law or any other case or proceeding to be adjudicated bankrupt or insolvent, (ii) the Company consents to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Bankruptcy Law or to the commencement of any bankruptcy or insolvency case or proceeding against it, (iii) the Company files a petition or answer or consent seeking reorganization or substantially comparable relief under any applicable federal state law, (iv) the Company (1) consents to the filing of such petition or the appointment of, or taking possession by, a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or of any substantial part of its property, (2) makes an assignment for the benefit of creditors, or (3) admits in writing its inability to pay its debts generally as they become due, or (v) the Company takes any corporate action in furtherance of any such actions in this clause (d) ; or

 

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(e) any other Event of Default provided with respect to Securities of that series.

“ Bankruptcy Law ” means Title 11, United States Code, or any similar federal or state law for the relief of debtors. “ Custodian ” means any receiver, trustee, assignee, liquidator, custodian or similar official under any Bankruptcy Law.

A Default under clause (b)  above is not an Event of Default until the Trustee notifies the Company, or the Holders of at least 25% in aggregate Principal Amount of the Outstanding Securities of all series for which such Default exists notify the Company and the Trustee, of the Default and the Company does not cure such Default within the time specified in clause (b)  above after receipt of such notice. Any such notice must specify the Default, demand that it be remedied and state that such notice is a “ Notice of Default .”

Section 5.2 Acceleration . If an Event of Default specified in Sections 5.1(c)  or (d)  occurs and is continuing, the Principal (or portion thereof) of all the Securities shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Securityholders, notwithstanding the second sentence of Section 3.1 hereof and without regard to whet