PIF/CORNERSTONE MINISTRIES INVESTMENTS, INC.
AND
REGIONS BANK
-----------------
TRUST INDENTURE
Dated as of October __, 2001
-----------------
$20,000,000.00
Graduated Rate Redeemable Certificates
Seven Day Redeemable Certificates
================================================================================
Exhibit 4.4
TABLE OF CONTENTS
ARTICLE 1 - DEFINITIONS AND INCORPORATION BY REFERENCE 4
Section 1.01 Definitions 4
Section 1.02 Other Definitions5
Section 1.03 Incorporation by Reference of Trust Indenture Act. 5
Section 1.04 Rules of Construction. 6
ARTICLE 2 - THE SECURITIES 6
Section 2.01 Form and Dating. 6
Section 2.02 Execution and Authentication. 6
Section 2.03 Agents. 7
Section 2.04 Security Owner Lists. 7
Section 2.05 Registration, Transfer and Exchange. 7
Section 2.06 Replacement Securities. 7
Section 2.07 Outstanding Securities. 8
Section 2.08 Temporary Securities. 8
Section 2.09 Cancellation. 8
Section 2.10 Defaulted Interest. 8
Section 2.11 Book Entry Form. 8
ARTICLE 3 - REDEMPTION 9
Section 3.01 Notices to Paying Agent. 9
Section 3.02 Selection of Securities to be Redeemed. 9
Section 3.03 Notice of Redemption. 9
Section 3.04 Deposit of Redemption Price. 9
Section 3.05 Effect of Notice of Redemption. 9
Section 3.06 Securities Redeemed in Part. 10
ARTICLE 4 - COVENANTS 10
Section 4.01 Payment of Securities. 10
Section 4.02 Books and Records. 10
Section 4.03 Use of Proceeds. 10
Section 4.04 Corporate Existence. 10
Section 4.05 Compliance Certificate. 11
Section 4.06 SEC Reports. 11
Section 4.07 Notices of Certain Events.11
ARTICLE 5 - SUCCESSOR CORPORATION 11
Section 5.01 When Corporation May Merge, etc. 11
ARTICLE 6 - DEFAULTS AND REMEDIES 11
Section 6.01 Events of Default. 11
Section 6.02 Acceleration. 12
Section 6.03 Remedies. 13
Section 6.04 Waiver of Past Defaults. 13
Section 6.05 Control by Majority. 13
Section 6.06 Limitation on Suits. 13
Section 6.07 Rights of Owners to Receive Payment. 13
Section 6.08 Limited Liability. 14
Section 6.09 Trustee May File Proofs of Claim. 14
Section 6.10 Priorities. 14
Section 6.11 Undertaking for Costs. 14
ARTICLE 7 - TRUSTEE, PAYING AGENT AND XXXXXXXXX 00
Section 7.01 Duties. 15
Section 7.02 Rights of Trustee, Paying Agent and
Xxxxxxxxx. 00
Section 7.03 Disclaimers. 15
Section 7.04 Individual Rights of Trustee, Paying Agent
and Registrar. 15
Section 7.05 Notice of Defaults. 16
Section 7.06 Reports by Trustee to Owners. 16
Section 7.07 Compensation and Indemnity. 16
Section 7.08 Replacement of Trustee, Paying Agent or
Registrar. 16
Section 7.09 Successor by Merger, etc. 17
Section 7.10 Eligibility; Disqualification. 17
Section 7.11 Preferential Collection of Claims Against
Corporation. 17
ARTICLE 8 - DISCHARGE OF INDENTURE 17
Section 8.01 Termination of Corporation's Obligations. 17
Section 8.02 Application of Trust Money. 18
Section 8.03 Repayment to Corporation. 18
ARTICLE 9 - AMENDMENTS, SUPPLEMENTS AND WAIVERS 19
Section 9.01 Without Consent of Owners.19
Section 9.02 With Consent of Owners. 19
Section 9.03 Revocation and Effect of Consents. 19
Section 9.04 Notation on or Exchange of Securities. 20
Section 9.05 Trustee to Sign Amendments, etc. 20
Section 9.06 Future Certificates. 20
Section 9.07 Compliance with Trust Indenture Act. 20
ARTICLE 10 - MISCELLANEOUS 20
Section 10.01 Notices. 20
Section 10.02 Communications by Security Owners with Other
Security Owners.21
Section 10.03 Certificate and Opinion as to Conditions
Precedent. 21
Section 10.04 Statements Required in Certificate or Opinion. 21
Section 10.05 When Securities Disregarded. 22
Section 10.06 Rules by Trustee, Paying Agent, Registrar. 22
Section 10.07 Legal Holidays. 22
Section 10.08 Governing Law. 22
Section 10.09 No Adverse Interpretation of Other
Agreements. 22
Section 10.10 No Recourse Against Others. 22
Section 10.11 Successors. 23
Section 10.12 Duplicate Originals. 23
Section 10.13 Trust Indenture Act Controls. 23
CORNERSTONE MINISTRIES INVESTMENTS, INC.
Reconciliation and Tie between Trust Indenture Act of 1939
and the Indenture dated as of October __, 2001
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
ss. 310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) 3.06
(b) 7.08; 7.10; 10.01
(c) N.A.
ss. 311(a) 7.11
(b) 7.11
(c) N.A.
ss. 312(a) 2.04
(b) 10.02
(c) 10.02
ss. 313(a) 7.06
(b) 7.06; 10.01
(c)(1) 2.04; 7.06; 10.01
(c)(2) N.A.
(c)(3) 2.04; 7.06; 10.01
(d) 7.06
ss. 314(a) 4.06, 10.01
(b) N.A.
(c)(1) 10.03
(c)(2) 10.03
(c)(3) N.A.
(d) N.A.
(e) 10.04
(f) N.A.
ss. 315(a) 7.01(2)
(b) 7.05; 10.01
(c) 7.01(1)
(d) 7.01(3)
(e) 6.11
ss. 316(a)(last sentence) 10.05
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
ss. 317(a)(1) 6.03
(a)(2) 6.09
(b) 8.02; 10.01
ss. 318(a) 10.13
N.A. means Not Applicable.
NOTE: This Reconciliation and Tie shall not, for any purpose, be deemed to be a
part of the Indenture.
TRUST INDENTURE dated as of October __, 2001, among
PIF/CORNERSTONE MINISTRIES, INC., a Georgia corporation
("Corporation") and REGIONS BANK, a Georgia corporation (as
"Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Owners of
the Corporation's Graduated Rate Redeemable Certificates and
Seven Day Redeemable Certificates ("Securities"):
- DEFINITIONS AND INCORPORATION BY REFERENCE
DEFINITIONS
"CERTIFICATE" means any of the Graduated Rate Redeemable
Certificates and Seven Day Redeemable Certificates issued
pursuant to the terms hereof or any Certificates issued in the
future hereunder.
"CERTIFICATE PAYMENT FUND" means the fund created with Paying
Agent into which the Corporation shall pay not less than three
(3) days prior to any principal and interest paying date an
amount sufficient to make all principal and interest payments.
"CERTIFICATED SECURITY" means a Security represented by a
physical certificate.
"CORPORATION" means the party named as such in this Indenture
until a successor replaces it and thereafter means the
successor.
"DEFAULT" means any event which is, or after notice or lapse
of time or both would be, an Event of Default. A Default
hereunder shall constitute a default within the meaning of
Section 316(c) only if and when it constitutes an "Event of
Default" hereunder.
"INDENTURE" means this Indenture as amended or supplemented
from time to time.
"OBLIGATIONS" means the principal and interest due and payable
with respect to Certificates issued pursuant to this
Indenture, all expenses and fees of Trustee, Paying Agent, and
Registrar, and all debts, liabilities and obligations of the
Corporation to the Trustee and Certificate Owners related to
the Certificates, however evidenced and whether now existing
or hereafter incurred, direct or indirect, matured or not
matured, absolute or contingent, now due or hereafter to
become due (including, without limitation, any and all costs
and attorneys' fees incurred by the Trustee in the collection,
whether by suit or by any other means, of any of the
Obligations) and the extension or renewals of any of the
foregoing.
"OFFICER" means the Chairman of the Board, the President, any
Vice President, the Treasurer, or the Secretary of the
Corporation.
"OFFICERS' CERTIFICATE" means a certificate signed by two
Officers or by an Officer and an Assistant Treasurer or
Assistant Secretary of the Corporation.
"OWNER" OR "SECURITY OWNER" means the person in whose name a
Registered Security is registered on Registrar's books.
"NON-CERTIFICATED SECURITIES" means Securities registered as
to ownership in book entry form only.
"PRINCIPAL" of a Security means the amount stated as principal
on the face of the Security plus, when appropriate, the
premium, if any on the Security.
"REGISTERED SECURITY" means Securities of the Corporation
issued pursuant to this Indenture and fully registered on
Registrar's books.
"REGISTERED SECURITY OWNER" means the registered owner of any
Registered Security.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the Certificates, as amended or
supplemented from time to time.
"TIA" means the Trust Indenture Act of 1939 (15 X.X.X.xx.xx.
77aaa et. seq.) as in effect on the date of this Indenture.
"TRUSTEE" means the party named as such in this Indenture
until a successor replaces it and thereafter means the
successor.
"TRUST OFFICER" means the Chairman of the Board, the President
or any other officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust
matters.
OTHER DEFINITIONS
Term Defined in Section
"Bankruptcy Law" 6.01
"Event of Default" 6.01
"Legal Holiday" 10.06
"U.S. Government Obligations" 8.01
"Paying Agent" 2.03
"Registrar" 2.03
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 in this Indenture have
the following meanings:
"INDENTURE SECURITIES" means the Securities.
5
"OBLIGOR" on the Indenture Securities means the Corporation.
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.
RULES OF CONSTRUCTION.
Unless the context otherwise requires:
A TERM HAS THE MEANING ASSIGNED TO IT;
AN ACCOUNTING TERM NOT OTHERWISE DEFINED HAS THE MEANING ASSIGNED TO IT IN
ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES;
"OR" IS NOT EXCLUSIVE; AND WORDS
IN THE SINGULAR INCLUDE THE PLURAL, AND IN THE PLURAL INCLUDE THE SINGULAR.
- THE SECURITIES
FORM AND DATING.
The Securities and Registrar's certificate of authentication
shall be substantially in the form of Exhibit A (in the case
of Certificated Securities that are Graduated Rate Redeemable
Certificates) and Exhibit B (in the case of Certificated
Securities that are Seven Day Redeemable Certificates). The
Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage. The Corporation
shall approve the form of the Securities and any notation,
legend or endorsement on them. Each Security shall be dated
the date of its authentication.
As permitted by Section 2.11 hereof, the Corporation does not
plan to issue Certificated Securities but rather plans to
issue Non-certificated Securities in book entry form. The
Owner of a Graduated Rate Redeemable Certificate that is a
Non-certificated Security shall have the rights set out in
Exhibit A, as completed on the books and records of the
Corporation and reflected in the records of the Registrar. The
Owner of a Seven Day Redeemable Certificate that is a
Non-certificated Security shall have the rights set out in
Exhibit B, as completed on the books and records of the
Corporation and reflected in the records of the Registrar.
EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Certificated Securities for the
Corporation by facsimile signature. The Corporation's seal
shall be reproduced on the Certificated Securities. If an
Officer who signed a Certificated Security no longer holds
that office at the time Registrar authenticates the
Certificated Security, the Certificated Security shall be
valid nevertheless.
No Certificated Security shall be valid until Registrar
manually signs the certificate of authentication on the
Certificated Security or authorizes Registrar to register the
Non-certificated Security in the official registry. The
signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.
Registrar shall authenticate Securities for original issue in
the aggregate principal amount of up to $20,000,000 upon a
written order of the Corporation signed by two Officers or by
an Officer and an Assistant Treasurer of the Corporation. The
6
aggregate principal amount of Securities outstanding at any
time may be increased pursuant to the provisions of Section
9.06 hereof.
AGENTS.
The Company shall maintain an office or agency where
Securities may be presented for registration of transfer or
for exchange ("Registrar") and where Securities may be
presented for payment ("Paying Agent"). Whenever the Company
must issue or deliver Certificated Securities pursuant to this
Indenture, the Trustee shall authenticate the Certificated
Securities at the Company's request. The Registrar shall keep
a register of the Securities and of their transfer and
exchange.
The Company may appoint more than one Registrar on Paying
Agent. The Company shall notify the Trustee of the name and
address of any Agent not a party to this Indenture. If the
Company does not appoint a Registrar or Paying Agent, the
Trustee shall act as such. The Company plans to act as Paying
Agent but may appoint another person. The initial Registrar is
Transfer Online, Inc.
SECURITY OWNER LISTS.
Registrar shall preserve, in as current a form as is
reasonably practicable, the most recent list available to it
of the names and addresses of Registered Security Owners.
Registrar, on behalf of the Corporation, shall furnish to the
Trustee, on or before each semiannual interest payment date
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 Registered
Security Owners.
REGISTRATION, TRANSFER AND EXCHANGE.
The Corporation will issue fully Registered Securities,
although it does not presently plan to issue Certificated
Securities (but reserves the right to). Registered Securities
shall be the form of Exhibit A (in the case of Securities that
are Graduated Rate Redeemable Certificates) and Exhibit B (in
the case of Securities that are Seven Day Redeemable
Certificates). The Securities will be initially issued only as
Registered Securities.
When a Certificated Security is presented to Registrar with a
request to register the transfer, Registrar shall register the
transfer as requested if the requirements of applicable state
law are met and, in the case of Non-certificated Securities,
such other reasonable requirements adopted by the Registrar,
consistent with its ordinary practice, to avoid fraud. To
permit transfers and exchanges, the Corporation shall execute
Securities at Registrar's request. Registrar may charge a
reasonable fee for any transfer or exchange but not for any
exchange pursuant to Section 2.09, 3.06 or 9.04.
REPLACEMENT SECURITIES.
If the Owner of a Certificated Security claims that a
Certificated Security has been lost, destroyed or wrongfully
taken, Registrar shall issue and the Corporation shall execute
a replacement Security. An indemnity bond must be delivered by
the Owner to Registrar in an amount sufficient, in the
judgment of Registrar, to protect the Corporation, the
Trustee, Paying Agent, and Registrar from any loss which any
of them may suffer if a Certificated Security is replaced.
Registrar may charge for its expenses in replacing a Security.
7
OUTSTANDING SECURITIES.
Securities outstanding at any time are all Securities
authenticated by Registrar or reflected on the books and
records of the Registrar as outstanding, except for those
canceled by it and those described in this Section. Securities
outstanding include those held by the Corporation or its
affiliates.
If a Security is replaced pursuant to Section 2.06, it ceases
to be outstanding unless Registrar receives proof satisfactory
to it that the replaced Security is held by a bona fide
purchaser.
If Paying Agent holds on a redemption date or maturity date
money sufficient to pay Securities payable on that date, then
on and after that date such Securities cease to be outstanding
and interest on them ceases to accrue. Such Securities carry
no rights except the right to receive payment.
The Registered Security Owner shall be treated as the owner of
the Security for all purposes of this Indenture.
TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the
Corporation may prepare and Registrar shall authenticate
temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may
have variations that the Corporation considered appropriate
for temporary Securities. Without unreasonable delay, the
Corporation shall prepare and Registrar shall authenticate
definitive Securities in exchange for temporary Securities.
CANCELLATION.
The Corporation at any time may direct Registrar to cancel
unsold Securities or Securities owned by the Corporation.
Registrar and no one else shall cancel and destroy
Certificated Securities surrendered for transfer, exchange,
payment or cancellation. The Corporation may not issue new
Securities to replace Securities it has paid or delivered to
Registrar for cancellation.
DEFAULTED INTEREST.
If and to the extent the Corporation defaults in a payment of
interest on any Registered Securities, it shall pay the
defaulted interest to the persons who are Registered Security
Owners on a subsequent special record date. The Corporation
shall fix the record date and payment date. At least thirty
(30) days before the record date, the Corporation shall mail
to each Registered Security Owner a notice that states the
record date, the payment date, and the amount of defaulted
interest to be paid. The Corporation may pay defaulted
interest in any other lawful matter.
BOOK ENTRY FORM.
Notwithstanding anything contained herein to the contrary,
each of the Certificates issued hereunder may be issued in
book entry form as a Non-certificated Security.
8
- REDEMPTION
NOTICES TO PAYING AGENT.
If the Corporation wants to redeem Securities pursuant to the
terms of the Securities, it shall notify Paying Agent of the
redemption date and the principal amount of Securities to be
redeemed. If the Corporation wants to credit against such
redemption any Securities it has not previously directed
Registrar to cancel, it shall deliver such directions along
with any Certificated Securities to be canceled. The
Corporation shall give each notice provided for in this
Section at least ten (10) days prior to the proposed date of
mailing a notice of redemption as provided in Section 3.03.
SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, Paying
Agent shall select the Securities to be redeemed by a method
Paying Agent considers fair and appropriate. Paying Agent
shall make the selection from Securities outstanding and not
previously called for redemption. Paying Agent may select for
redemption portions of the principal of Securities that have a
denomination larger than $500. Provisions of this Indenture
that apply to whole Securities called for redemption also
apply to portions of Securities called for redemption.
NOTICE OF REDEMPTION.
At least thirty (30) days but not more than sixty (60) days
before a redemption date, the Corporation shall mail and first
publish notice of redemption as provided in Section 10.01.
The notice shall identify the Securities to be redeemed and
shall state:
THE REDEMPTION DATE;
THE REDEMPTION PRICE AS SPECIFIED IN THE SECURITIES;
THE NAME AND ADDRESS OF PAYING AGENT;
THAT CERTIFICATED SECURITIES CALLED FOR REDEMPTION MUST BE SURRENDERED TO
PAYING AGENT TO COLLECT THE REDEMPTION PRICE; AND
THAT INTEREST CEASES TO ACCRUE ON SECURITIES CALLED FOR REDEMPTION
ON AND AFTER THE REDEMPTION DATE.
At the Corporation's request, Paying Agent shall give the
notice of redemption in the Corporation's name and at its
expense.
DEPOSIT OF REDEMPTION PRICE.
On or before the redemption date, the Corporation shall
deposit with Paying Agent money sufficient to pay the
redemption price of and accrued interest on all Securities to
be redeemed on that date.
EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is given, Securities called for
redemption become due and payable on the redemption date and
at the redemption price stated in the notice. Certificated
Securities must be surrendered to Paying Agent. Securities
shall be paid at the redemption price stated in the notice,
plus interest accrued to the redemption date.
9
SECURITIES REDEEMED IN PART.
Upon surrender of a Certificated Security that is redeemed in
part only, Registrar shall authenticate for the Owner a new
Certificated Security equal in principal amount to the
unredeemed portion of the Certificated Security surrendered.
- COVENANTS
PAYMENT OF SECURITIES.
The Corporation shall promptly pay the principal of and
interest on the Securities on the dates and in the manner
provided in the Securities. An installment of principal or
interest shall be considered paid on the date it is due if
Paying Agent holds on that date money designated for and
sufficient to pay the installment. To facilitate the payment
of principal and interest, the Corporation has created with
Paying Agent a Certificate Payment Fund into which the
Corporation shall pay, not less than three (3) business days
prior to any principal and interest paying date, an amount
sufficient to make all principal and interest payments. Paying
Agent will disburse from said fund all payments of principal
and interest on Certificates, Fiduciaries' fees and such other
sums as are due and payable as provided herein.
Paying Agent shall notify the Corporation of the amounts
required to be deposited into said fund at least five (5) days
prior to any principal and interest payment date.
The Corporation shall pay interest on overdue principal at the
rate borne by the Securities; it shall pay interest on overdue
installments of interest at the same rate to the extent
lawful.
BOOKS AND RECORDS.
The Corporation covenants and agrees that it will, at all
times and from time to time, permit the Trustee and its agents
or accountants to have access to and to inspect and make
extracts from, the Corporation's books, accounts, papers,
documents and memoranda pertinent to any of the covenants,
conditions and agreements of this Indenture in respect of the
Securities.
USE OF PROCEEDS.
The Corporation hereby covenants to use the proceeds from the
sale of the Securities in accordance with the terms and
conditions set forth in the Prospectus of the Corporation with
respect to the Securities.
CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Corporation will do or cause
to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights and
franchises; provided, however, that the Corporation shall not
be required to preserve any right or franchise if it shall
determine that the preservation is no longer desirable in the
conduct of the Corporation's business and that the loss will
not be disadvantageous in any material respect to the Owners.
10
COMPLIANCE CERTIFICATE.
The Corporation shall deliver to the Trustee within one
hundred twenty (120) days after the end of each fiscal year of
the Corporation an Officers' Certificate stating whether the
signers know of any Default by the Corporation in performing
its covenants in Article 4 hereof. If they do know of such a
Default, the certificate shall describe the Default. The
Officers' Certificate need not comply with Section 10.04. The
first Officers' Certificate shall be delivered to the Trustee
by May 1, 2002.
SEC REPORTS.
The Corporation shall file with the Trustee, within fifteen
(15) days after filing same with the SEC, copies of the annual
reports 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 Corporation
is required to file with the SEC pursuant to Sections 13 or
15(d) of the Securities Exchange Act of 1934. The Corporation
also shall comply with the other provisions of TIA Section
314(a).
NOTICES OF CERTAIN EVENTS.
The Corporation shall give prompt written notice to the
Trustee and any Paying Agent of (i) any Event of Default and
(ii) any cure or waiver of any Event of Default.
- SUCCESSOR CORPORATION
WHEN CORPORATION MAY MERGE, ETC.
The Corporation shall not consolidate with or merge into, or
transfer all or substantially all of its assets to, another
corporation unless the resulting, surviving or transferee
corporation assumes by supplemental Indenture all the
obligations of the Corporation under the Securities and this
Indenture. No consent of any Security Owner or Trustee is
required with respect to any such consolidation, merger or
transfer that complies with the previous sentence.
- DEFAULTS AND REMEDIES
EVENTS OF DEFAULT.
An "Event of Default" occurs if:
11
THE CORPORATION DEFAULTS IN THE PAYMENT OF INTEREST ON ANY SECURITY WHEN THE
SAME BECOMES DUE AND PAYABLE AND SUCH DEFAULT CONTINUES FOR A PERIOD OF
SIXTY (60) DAYS;
THE CORPORATION DEFAULTS IN THE PAYMENT OF THE PRINCIPAL OF ANY SECURITY
WHEN THE SAME BECOMES DUE AND PAYABLE AT MATURITY, UPON REDEMPTION OR
OTHERWISE AND SUCH DEFAULT CONTINUES FOR A PERIOD OF SIXTY (60) DAYS;
THE CORPORATION DEFAULTS BY FAILING TO COMPLY WITH ANY OF ITS OTHER AGREEMENTS
IN CONNECTION WITH THE SECURITIES OR THIS INDENTURE AND SUCH
DEFAULT CONTINUES FOR THE PERIOD AND AFTER THE NOTICE SPECIFIED BELOW;
THE CORPORATION, PURSUANT TO OR WITHIN THE MEANING OF ANY BANKRUPTCY LAW:
COMMENCES A VOLUNTARY CASE;
CONSENTS TO THE ENTRY OF AN ORDER FOR RELIEF AGAINST IT IN AN INVOLUNTARY CASE;
CONSENTS TO THE APPOINTMENT OF A CUSTODIAN OF IT OR FOR ANY SUBSTANTIAL PART OF
ITS PROPERTY;
MAKES A GENERAL ASSIGNMENT FOR THE BENEFIT OF ITS CREDITORS; OR
FAILS GENERALLY TO PAY ITS DEBTS AS THEY BECOME DUE; OR
A COURT OF COMPETENT JURISDICTION ENTERS AN ORDER OR DECREE UNDER ANY BANKRUPTCY
LAW THAT:
IS FOR RELIEF AGAINST THE CORPORATION IN AN INVOLUNTARY CASE;
APPOINTS A CUSTODIAN OF THE CORPORATION OR FOR ANY SUBSTANTIAL PART OF ITS
PROPERTY; OR ORDERS THE LIQUIDATION OF THE CORPORATION;
and the order or decree remains unstated and in effect for ninety (90) days.
The term "Bankruptcy Law" means title 00, Xxxxxx Xxxxxx Code
or any similar federal or state law for the relief of debtors.
The term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy law.
Paying Agent and Registrar shall promptly notify Trustee in
writing of the occurrence of any Event of Default.
A Default under clauses (3) above is not an Event of Default
until the Trustee notifies the Corporation of such Default and
the Corporation does not cure such Default within ninety (90)
days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice
is a "Notice of Default."
ACCELERATION.
If an Event of Default occurs and is continuing, and the
Trustee has been made aware thereof, the Trustee, by notice to
the Corporation or the Owners of at least twenty five percent
(25%) in principal amount of the Securities, may declare the
principal of and accrued interest on all the Securities to be
due and payable immediately. Upon a declaration such principal
and interest shall be due and payable immediately.
Notwithstanding the foregoing, if, at any time after the
principal of the Securities has been declared due and payable,
all Defaults have been cured and all amounts in respect of
which the Corporation shall be in default, together with the
expenses and reasonable charges of the Trustee, Paying Agent
and/or Registrar and reasonable attorneys' fees with interest
at a rate equal to two (2) percentage points in excess of the
highest rate on any of the Certificates on such expenses,
charges and fees, then the Trustee shall waive such Default
and its consequences by written notice to the Corporation.
12
REMEDIES.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in
equity to collect the payment of principal or interest on the
Securities or to enforce the performance of any provision of
the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them
in the proceedings. A delay or omission by the Trustee or any
Security Owner in exercising any right or remedy accruing upon
an Event of Default shall not impair such right or remedy or
constitute a waiver of or acquiescence in the Event of
Default. No remedy is exclusive of any other remedy. All
available remedies are cumulative.
WAIVER OF PAST DEFAULTS.
Subject to Section 9.02 hereof, the Owners of a majority in
principal amount of the Securities, by notice to the Trustee,
may waive an existing Default or Event of Default and its
consequences. When a Default or Event of Default is waived, it
is cured and stops continuing.
CONTROL BY MAJORITY.
The Owners of a majority in principal amount of the Securities
may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it. The Trustee,
however, may refuse to follow any direction that conflicts
with law or this Indenture, that is unduly prejudicial to the
rights of other Security Owners, or that may involve the
Trustee in personal liability.
LIMITATION ON SUITS.
A Security Owner may not pursue any remedy with respect to
this Indenture or the Securities unless:
THE OWNER GIVES TO THE TRUSTEE WRITTEN NOTICE OF A CONTINUING EVENT OF DEFAULT;
THE OWNERS OF AT LEAST A MAJORITY IN PRINCIPAL AMOUNT OF THE SECURITIES MAKE A
WRITTEN REQUEST TO THE TRUSTEE TO PURSUE THE REMEDY;
SUCH OWNER OR OWNERS OFFER TO THE TRUSTEE INDEMNITY SATISFACTORY TO THE TRUSTEE
AGAINST ANY LOSS, LIABILITY OR EXPENSE; AND
THE TRUSTEE DOES NOT COMPLY WITH THE REQUEST WITHIN SIXTY (60) DAYS AFTER
RECEIPT OF THE REQUEST AND THE OFFER OF INDEMNITY.
A Security Owner may not use this Indenture to prejudice the
rights of another Security Owner or to obtain a preference or
priority over any other Security Owner.
RIGHTS OF OWNERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the
right of any Owner of a Security to receive when due under the
terms of the Security payment of principal and interest on the
Security, or to bring suit for the enforcement of any such
payment on or after such respective due dates, shall not be
impaired or affected without the consent of the Owner of the
Security.
13
LIMITED LIABILITY.
The Securities are general obligations of the Corporation, and
no entity other than the Corporation shall have any liability
for repayment of the Securities.
TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have
the claims of the Trustee and the Security Owners allowed in
any judicial proceedings relative to the Corporation, its
creditors or its property.
PRIORITIES.
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
FIRST: for amounts due under Section 7.07;
SECOND: to Security Owners for amounts due and unpaid on the
Securities for principal and interest, ratably, without
preference or priority of any kind, according to the amounts
due and payable on the Securities for principal and interest,
respectively; and
THIRD: to the Corporation.
The Trustee may fix a record date and payment date for any
payment to Registered Security Owners.
UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the
suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section
does not apply to a suit by the Trustee, a suit brought by a
Owner of Securities pursuant to Section 6.07, or a suit by
Owners of more than ten percent (10%) in principal amount of
the Securities.
14
- TRUSTEE, PAYING AGENT AND REGISTRAR
DUTIES.
IF AN EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING, THE TRUSTEE SHALL
EXERCISE ITS RIGHTS AND POWERS AND USE THE SAME DEGREE OF CARE AND SKILL
IN ITS EXERCISE AS A PRUDENT PERSON WOULD EXERCISE OR USE UNDER THE
CIRCUMSTANCES IN THE CONDUCT OF HIS OR HER OWN AFFAIRS.
EXCEPT DURING THE CONTINUANCE OF AN EVENT OF DEFAULT:
THE TRUSTEE NEED PERFORM ONLY THOSE DUTIES THAT ARE SPECIFICALLY SET FORTH IN
THIS INDENTURE AND NO OTHERS; AND IN THE ABSENCE OF BAD FAITH ON ITS PART, THE
TRUSTEE, PAYING AGENT OR REGISTRAR MAY CONCLUSIVELY RELY, AS TO THE TRUTH OF THE
STATEMENTS AND THE CORRECTNESS OF THE OPINIONS EXPRESSED THEREIN, UPON
CERTIFICATES OR OPINIONS FURNISHED TO IT AND CONFORMING TO THE REQUIREMENTS OF
THIS INDENTURE. THE TRUSTEE, PAYING AGENT OR REGISTRAR, HOWEVER, SHALL EXAMINE
THE CERTIFICATES AND OPINIONS TO DETERMINE WHETHER OR NOT THEY CONFORM TO THE
REQUIREMENTS OF THIS INDENTURE.
NEITHER TRUSTEE, PAYING AGENT NOR REGISTRAR MAY BE RELIEVED FROM LIABILITY FOR
ITS OWN NEGLIGENT ACTION, ITS OWN NEGLIGENT FAILURE TO ACT, OR ITS OWN WILLFUL
MISCONDUCT, EXCEPT THAT:
THIS PARAGRAPH DOES NOT LIMIT THE EFFECT OF PARAGRAPH (2) OF THIS SECTION 7.01;
NEITHER TRUSTEE, PAYING AGENT NOR REGISTRAR SHALL BE LIABLE FOR ANY ERROR OF
JUDGMENT MADE IN GOOD FAITH, UNLESS IT IS PROVED THAT THE SUCH ENTITY WAS
NEGLIGENT IN ASCERTAINING THE PERTINENT FACTS; AND NEITHER TRUSTEE, PAYING AGENT
NOR REGISTRAR SHALL BE LIABLE WITH RESPECT TO ANY ACTION IT TAKES OR OMITS TO
TAKE IN GOOD FAITH IN ACCORDANCE WITH A DIRECTION RECEIVED BY IT PURSUANT TO
SECTIONS 6.05 OR 6.06.
EVERY PROVISION OF THIS INDENTURE THAT IN ANY WAY RELATES TO TRUSTEE, PAYING
AGENT OR REGISTRAR IS SUBJECT TO PARAGRAPHS (1), (2) AND (3) OF THIS
SECTION 7.01.
THE TRUSTEE MAY REFUSE TO PERFORM ANY DUTY OR EXERCISE ANY RIGHT OR POWER UNLESS
IT RECEIVES INDEMNITY SATISFACTORY TO IT AGAINST ANY LOSS, LIABILITY OR EXPENSE.
NEITHER TRUSTEE, PAYING AGENT NOR REGISTRAR SHALL BE LIABLE FOR INTEREST ON ANY
MONEY RECEIVED BY IT EXCEPT AS OTHERWISE AGREED WITH THE CORPORATION.
RIGHTS OF TRUSTEE, PAYING AGENT AND REGISTRAR.
TRUSTEE, PAYING AGENT OR REGISTRAR MAY RELY ON ANY DOCUMENT BELIEVED BY IT TO
BE GENUINE AND TO HAVE BEEN SIGNED OR PRESENTED BY THE PROPER PERSON. IT NEED
NOT INVESTIGATE ANY FACT OR MATTER STATED IN THE DOCUMENT.
BEFORE A TRUSTEE, PAYING AGENT OR REGISTRAR ACTS OR REFRAINS
FROM ACTING, IT MAY REQUIRE AN OFFICERS' CERTIFICATE OR AN
OPINION OF COUNSEL. NEITHER TRUSTEE, PAYING AGENT OR
REGISTRAR SHALL BE LIABLE FOR ANY ACTION IT TAKES
OR OMITS TO TAKE IN GOOD FAITH IN RELIANCE ON SUCH AN OFFICER'S
CERTIFICATE OR OPINION.
TRUSTEE MAY ACT THROUGH AGENTS AND SHALL NOT BE RESPONSIBLE FOR THE MISCONDUCT
OR NEGLIGENCE OF ANY AGENT APPOINTED WITH DUE CARE.
NEITHER TRUSTEE, PAYING AGENT NOR REGISTRAR SHALL BE LIABLE FOR ANY ACTION IT
TAKES OR OMITS TO TAKE IN GOOD FAITH WHICH IT BELIEVES TO BE AUTHORIZED OR
WITHIN ITS RIGHTS OR POWERS.
DISCLAIMERS.
Neither Trustee, Paying Agent nor Registrar makes any
representation as to the validity or adequacy of this
Indenture or the Securities, nor shall it be accountable for
the Corporation's use of the proceeds from the Securities, nor
shall it be responsible for any statement in the Securities,
other than its certificate of authentication, or in any
prospectus used in the sale of the Securities, other than
statements provided in writing by such entity for use in such
prospectus.
INDIVIDUAL RIGHTS OF TRUSTEE, PAYING AGENT AND REGISTRAR.
Trustee, Paying Agent or Registrar, each in its individual or
any other capacity, may become the owner or pledgee of
Securities and may otherwise deal
15
with the Corporation with the same rights it would have if it
were not Trustee, Paying Agent or Registrar.
NOTICE OF DEFAULTS.
If any Default occurs and is continuing, and if it is known to
the Trustee, the Trustee shall mail and first publish as
provided in Section 10.01 notice of the Default within ninety
(90) days after it occurs. Except in the case of a Default in
payment on any Security, the Trustee may withhold the notice
if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the
interests of Security Owners.
REPORTS BY TRUSTEE TO OWNERS.
Within sixty (60) days after each August 1, beginning with the
August 1 following the date of this Indenture, the Trustee
shall provide to the Security Owners specified in TIA Section
313(c) a brief report dated as of such August 1 that complies
with TIA Section 313(a). The Trustee also shall comply with
TIA Section 313(b).
If required by the TIA, a copy of each report at the time of
its mailing to Security Owners shall be filed with the SEC.
COMPENSATION AND INDEMNITY.
The Corporation shall pay to the Trustee, Paying Agent and
Registrar from time to time reasonable compensation for their
services as set forth in separate agreements. The Corporation
shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred by Trustee. Such expenses may
include the reasonable compensation and expenses of the
Trustee's agents and attorneys. The Corporation shall
indemnify the Trustee against any loss or liability incurred
in connection with providing services hereunder. Trustee shall
notify the Corporation promptly of any claim for which it may
seek indemnity. The Corporation shall defend the claims and
the Trustee shall cooperate in such defense. The Trustee may
have separate counsel and the Corporation shall pay the
reasonable fees and expenses of such counsel. The Corporation
need not pay for any settlement made without its consent. The
Corporation need not reimburse any expense or indemnify
against any loss or liability incurred by Trustee through its
own negligence or bad faith.
To secure the Corporation's payment obligations in this
Section, the Trustee, Paying Agent and Registrar shall have a
lien prior to the Securities on all trust monies.
REPLACEMENT OF TRUSTEE, PAYING AGENT OR REGISTRAR.
The Trustee, Paying Agent or Registrar may resign by so
notifying the Corporation. The Corporation may at any time
without cause remove Trustee, Paying Agent or Registrar by so
notifying the removed entity. The Corporation or the Owners of
a majority in principal amount of the Securities may appoint a
successor Trustee, Paying Agent or Registrar with the
Corporation's consent or may remove Trustee, Paying Agent or
Registrar if:
16
THE TRUSTEE, PAYING AGENT OR REGISTRAR IS ADJUDGED A BANKRUPT OR AN INSOLVENT;
A RECEIVER OR OTHER PUBLIC OFFICER TAKES CHARGE OF THE TRUSTEE, PAYING AGENT OR
REGISTRAR OR ITS PROPERTY; OR
THE TRUSTEE, PAYING AGENT OR REGISTRAR OTHERWISE BECOMES INCAPABLE OF ACTING.
If the Trustee, Paying Agent or Registrar resigns or is
removed or if a vacancy exists in the office of Trustee,
Paying Agent, or Registrar for any reason, the Corporation
shall promptly appoint a successor.
A successor Trustee, Paying Agent or Registrar shall deliver a
written acceptance of its appointment to the Retiring Trustee,
Paying Agent or Registrar and to the Corporation. Immediately
thereafter, the retiring Trustee, Paying Agent or Registrar
shall transfer all property held by it hereunder to the
successor Trustee, Paying Agent or Registrar, the resignation
or removal of the retiring Trustee, Paying Agent or Registrar
shall become effective, and the successor Trustee, Paying
Agent or Registrar shall have all the rights, powers and
duties of the prior Trustee, Paying Agent or Registrar, as the
case may be, under this Indenture. A successor Trustee, Paying
Agent or Registrar shall give notice of its succession to each
Security Owner as provided in Section 10.01.
If a successor Trustee, Paying Agent or Registrar does not
take office within sixty (60) days after its predecessor
resigns or is removed, the retiring Trustee, Paying Agent or
Registrar, the Corporation or the Owners of a majority in
principal amount of the Securities may petition any court of
competent jurisdiction for the appointment of a successor.
SUCCESSOR BY MERGER, ETC.
If a Trustee, Paying Agent or Registrar consolidates with,
merges or converts into, or transfers all or substantially all
of its corporate trust assets to another corporation, the
resulting, surviving or transferee corporation without any
further act shall be the successor.
ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1). The Trustee shall have
a combined capital and surplus of at least $500,000 as set
forth in its most recent published annual report of condition.
The Trustee shall comply with TIA Section 310(b), including
the optional provision permitted by the second sentence of TIA
Section 310(b)(9).
PREFERENTIAL COLLECTION OF CLAIMS AGAINST CORPORATION.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A
Trustee who has resigned or been removed shall be subject to
TIA Section 311(a) to the extent indicated.
- DISCHARGE OF INDENTURE
TERMINATION OF CORPORATION'S OBLIGATIONS.
The Corporation at any time may terminate its obligation to
pay an installment of principal or interest if it deposits
with Trustee money or U.S. Government
17
Obligations sufficient to pay the installment when due. The
Corporation shall designate the installment.
The Corporation at any time may terminate all of its
obligations under the Securities and this Indenture (except
under Section 7.06 and with respect to the registration of
transfer or exchange provide herein) if it deposits with
Trustee money or U.S. Government Obligations in an amount
necessary to satisfy all Obligations thereunder and hereunder.
The Corporation's obligations with respect to registration of
transfer or exchange shall terminate when the Securities are
no longer outstanding. Thereafter, the Corporation's
obligations in Section 7.06 hereof shall survive.
Before or after a deposit the Corporation may make
arrangements satisfactory to Trustee for the redemption of
Securities at a future date in accordance with Article 3
hereof.
After a deposit pursuant to the second paragraph of this
Section 8.01, the Trustee shall acknowledge in writing the
discharge of the Corporation's obligations under the
Securities and this Indenture except for those surviving
obligations specified above.
An installment of principal or interest due on a Security
shall be considered paid on the date such installment is due
if the Trustee or Paying Agent holds on that date money
sufficient to pay the installment.
In order to have money available on payment dates to pay
principal or interest on the Securities, the U.S. Government
Obligations shall be payable as to principal or interest on or
before such payment dates in such amounts as will provide the
necessary money. U.S. Government Obligations shall not be
callable at the issuer's option.
"U.S. Government Obligations" means:
DIRECT OBLIGATIONS OF THE UNITED STATES FOR THE PAYMENT OF WHICH ITS FULL
FAITH AND CREDIT IS PLEDGED; OR
OBLIGATIONS OF A PERSON CONTROLLED OR SUPERVISED BY AND ACTING AS AN
AGENCY OR INSTRUMENTALITY OF THE UNITED STATES THE PAYMENT OF WHICH IS
UNCONDITIONALLY GUARANTEED AS A FULL FAITH AND CREDIT
OBLIGATION BY THE UNITED STATES.
APPLICATION OF TRUST MONEY.
Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.01.
Trustee shall apply the deposited money and the money from
U.S. Government Obligations in accordance with this Indenture
to the payment of principal and interest on the Securities.
Paying Agent shall notify the Trustee of any Default by the
Corporation in making such payments.
REPAYMENT TO CORPORATION.
Trustee and Paying Agent shall promptly pay to the Corporation
any excess money or securities held by it at any time. Trustee
and Paying Agent shall pay to
18
the Corporation any money held by it for the payment of
principal or interest that remains unclaimed for two (2)
years.
- AMENDMENTS, SUPPLEMENTS AND WAIVERS
WITHOUT CONSENT OF OWNERS.
The Corporation may amend or supplement this Indenture or the
Securities without notice to or consent of any Security Owner:
TO CURE ANY AMBIGUITY, OMISSION, DEFECT OR INCONSISTENCY;
TO MAKE ANY CHANGE THAT DOES NOT ADVERSELY AFFECT THE RIGHTS OF ANY SECURITY
OWNER IN ANY MATERIAL RESPECT; TO ISSUE ADDITIONAL
CERTIFICATES HEREUNDER;
TO INCUR ANY AMOUNT OF INDEBTEDNESS, WHETHER SECURED OR UNSECURED; OR
TO EVIDENCE THE SUCCESSION OF A SUCCESSOR CORPORATION OR OTHER ENTITY TO THE
CORPORATION AND THE ASSUMPTION BY SUCH SUCCESSOR OF THE COVENANTS OF THE
CORPORATION HEREIN AND IN THE SECURITIES.
The Trustee may waive compliance by the Corporation with any
provision of this Indenture or the Securities without notice
to or consent of any Security Owner if the waiver does not
adversely affect the rights of any Security Owner.
WITH CONSENT OF OWNERS.
The Corporation may amend or supplement this Indenture or the
Securities without notice to any Security Owner but with the
written consent of the Owners of not less than a majority in
principal amount of the Securities. The Owners of a majority
in principal amount of the Securities may waive compliance by
the Corporation with any provision of this Indenture or the
Securities without notice to any Security Owner. Without the
consent of each Security Owner affected, however, an
amendment, supplement or waiver, including a waiver pursuant
to Section 6.04, may not:
REDUCE THE AMOUNT OF SECURITIES WHOSE OWNERS MUST CONSENT TO AN AMENDMENT,
SUPPLEMENT OR WAIVER;
REDUCE THE RATE OR EXTEND THE TIME FOR PAYMENT OF INTEREST
ON ANY SECURITY; REDUCE THE PRINCIPAL OF OR EXTEND THE FIXED MATURITY OF
ANY SECURITY; MAKE ANY SECURITY PAYABLE IN MONEY OTHER THAN
THAT STATED IN THE SECURITY; OR
WAIVE A DEFAULT ON PAYMENT OF PRINCIPAL OR OF INTEREST ON ANY SECURITY.
REVOCATION AND EFFECT OF CONSENTS.
Any consent to an amendment, supplement or waiver by a Owner
of a Security shall bind the Owner and every subsequent Owner
of a Security or portion of a Security that evidences the same
debt as the consenting Owner's Security, even if notation of
such consent is not made on any Security. Any such Owner or
subsequent Owner, however, may revoke such consent as to his
or her Security or portion of a Security. The Trustee must
receive the notice of such revocation before the date the
amendment, supplement or waiver becomes effective.
After an amendment, supplement or waiver becomes effective, it
shall bind every Security Owner unless it makes a change
described in clauses (2), (3), (4), or (5) of Section 9.02. In
that case the amendment, supplement or waiver shall bind each
19
Owner of a Security who has consented to it and every
subsequent Owner of a Security or portion of a Security that
evidences the same debt as the consenting Owner's Security.
NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Owner of a Certificated
Security to deliver it to Registrar. Registrar may place an
appropriate notation on the Certificated Security about the
changed terms and return it to the Owner. Alternatively, if
the Corporation or Registrar so determine, the Corporation in
exchange for the Certificated Security shall issue and
Registrar shall authenticate a new Certificated Security that
reflects the changed terms.
TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article if the amendment,
supplement or waiver does not adversely affect the rights of
the Trustee. If it would have such an adverse effect, the
Trustee may but need not sign such amendment, supplement or
waiver. The Corporation may not sign an amendment or
supplement until the Board of Directors of the Corporation
approves it.
FUTURE CERTIFICATES.
The Corporation shall have the right to issue additional
Certificates hereunder, provided the Corporation is not in
default under any provision of this Trust Indenture. Such
additional Certificates shall be issued pursuant to resolution
duly adopted by the governing body of the Corporation;
provided, however, that the additional Certificates are issued
pursuant to a supplement to this Indenture. An executed copy
of said supplemental Indenture, signed by the Corporation, the
Trustee, Paying Agent, Registrar shall serve as a modification
of this Indenture. Such additional Certificates shall be of
equal standing and priority with all other series of
Certificates issued hereunder.
COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
- MISCELLANEOUS
NOTICES.
Any notice or communication shall be sufficiently given if in
writing and delivered in person or mailed by first class mail
addressed as follows:
if to the Corporation:
Cornerstone Ministries Investments, Inc.
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
20
if to the Trustee:
Regions Bank
------------------
------------------
------------------
Attention:
The Corporation or the Trustee by notice to the other may
designate additional or different addresses for subsequent
notices or communications.
Any notice or communication to Security Owners shall be
sufficiently given if mailed by first class mail to each
Registered Security Owner.
Any notice or communication mailed to a Security Owner shall
be mailed to him at his address as it appears on the lists or
registration books of Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to give notice or communication to a Security Owner or
any defect in it shall not affect its sufficiency with respect
to other Security Owners. If a notice or communication is
mailed, it is duly given, whether or not the Security Owner
receives or reads it.
COMMUNICATIONS BY SECURITY OWNERS WITH OTHER SECURITY OWNERS.
Security Owners may communicate, pursuant to TIA Section
312(b), with other Security Owners with respect to their
rights under this Indenture. Except as to any notice to the
Trustee or to the Corporation, which is deemed given only when
received, if any notice or communication is mailed in the
manner provided in Section 10.01 hereof, it is deemed duly
given, whether or not the addressee receives such notice or
communication.
CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Corporation to Trustee,
Paying Agent or Registrar to take any action under the
Indenture, the Corporation shall furnish to the Trustee,
Paying Agent or Registrar:
AN OFFICERS' CERTIFICATE STATING THAT, IN THE OPINION OF THE SIGNERS, ALL
CONDITIONS PRECEDENT, IF ANY, PROVIDED FOR IN THIS INDENTURE RELATING
TO THE PROPOSED ACTION HAVE BEEN COMPLIED WITH; AND
AN OPINION OF COUNSEL STATING THAT, IN THE OPINION OF SUCH COUNSEL, ALL SUCH
CONDITIONS PRECEDENT HAVE BEEN COMPLIED WITH.
Each opinion of counsel shall be in writing. The legal counsel
who renders it may be an employee of or counsel to the
Corporation. The legal counsel shall be acceptable to the
Trustee, Paying Agent or Registrar.
STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall
include:
21
A STATEMENT THAT THE PERSON MAKING SUCH CERTIFICATE OR OPINION HAS READ SUCH
COVENANT OR CONDITION;
A BRIEF STATEMENT AS TO THE NATURE AND SCOPE OF THE EXAMINATION OR INVESTIGATION
UPON WHICH THE STATEMENTS OR OPINIONS CONTAINED IN SUCH CERTIFICATE
OR OPINION ARE BASED; A STATEMENT THAT, IN THE OPINION OF SUCH PERSON,
HE HAS MADE SUCH EXAMINATION OR INVESTIGATION AS IS NECESSARY TO ENABLE HIM TO
EXPRESS AN INFORMED OPINION AS TO WHETHER OR NOT SUCH COVENANT OR CONDITION
HAS BEEN COMPLIED WITH; AND A STATEMENT AS TO WHETHER OR NOT, IN THE OPINION OF
SUCH PERSON, SUCH CONDITION OR COVENANT
HAS BEEN COMPLIED WITH.
WHEN SECURITIES DISREGARDED.
In determining whether the Owners of the required principal
amount of Securities have concurred in any direction, waiver
or consent, Securities owned by the Corporation or by a
person, directly or indirectly controlling or controlled by or
under direct or indirect common control with the Corporation
shall be disregarded, except that for the purposes of
determining whether the Trustee shall be protected in relying
on any such direction, waiver or consent, only Securities
which the Trustee knows are so owned shall be so disregarded.
Furthermore, subject to the foregoing only, Securities
outstanding at the time shall be considered in any such
determination.
RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for the administration
of this Indenture. Such rules may cover matters relating to
actions by or a meeting of Security Owners. Paying Agent or
Registrar may make reasonable rules for its functions.
LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, Sunday, a legal holiday or a
day on which banking institutions are not required to be open.
If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for
the intervening period.
GOVERNING LAW.
This Indenture and the Securities shall be governed by the
laws of the State of Georgia.
NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Corporation. Any such indenture,
loan or debt agreement may not be used to interpret this
Indenture.
NO RECOURSE AGAINST OTHERS.
As described in the Securities, all liability of any director,
officer, employee or stockholder, as such, of the Corporation
is waived and released.
22
SUCCESSORS.
All agreements of the Corporation in this Indenture and the
Securities shall bind its successor. All agreements of the
Trustee or Registrar and Paging Agent in this Indenture shall
bind its successor.
DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each sign copy shall be an original, but all of them taken
together represent but one and the same agreement.
TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required to be
included in this Indenture by the TIA, the required provision
shall control.
[SIGNATURE PAGE FOLLOW]
SIGNATURES
23
PIF/CORNERSTONE MINISTRIES INVESTMENTS, INC.
By:
-----------------------------------------
Title:
--------------------------------------
REGIONS BANK
By:
-----------------------------------------
Title:
--------------------------------------
24
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issue of Debt
Securities by Graduated Rate Redeemable Certificates and Seven Day Redeemable
Certificates of PIF/Cornerstone Ministries Investments, Inc., we hereby consent
that reports of examination by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon request therefor.
REGIONS BANK
By:
-------------------------------------
Xxxxxx X. Xxxxxxxx
Senior Vice President and Corporate
Trust Manager
Dated: September 28, 2001
EXHIBIT 7
CONSOLIDATED REPORT OF CONDITION OF
Regions Bank
Of 000 Xxxxx 00xx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000
And Subsidiaries,
A member of the Federal Reserve System,
At the close of business June 30, 2001
Excerpts from Schedule RC
(In thousands)
Total Assets $42,415,766
Total Liabilities $39,042,569
Total Equity Capital $3,215,466
I, Xxxxxx X. Xxxxxxxx, Senior Vice President and Corporate Trust Manager of the
above named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Xxxxxx X. Xxxxxxxx
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
