EXHIBIT 4.3
SUPPLEMENTAL INDENTURE
(Subordinated Debt Securities)
SECOND SUPPLEMENTAL INDENTURE dated as of December 1, 1997 (this
"Second Supplemental Indenture"), to the Indenture, dated as of December 1, 1997
(the "Indenture"), between THE MONEY STORE INC., a New Jersey corporation
(hereinafter called the "Company"), having its principal executive office at
0000 Xxxxxx Xxxxxx, Xxxxx, Xxx Xxxxxx 00000, and THE BANK OF NEW YORK, a New
York banking corporation (hereinafter called the "Trustee"), having its
Corporate Trust Office at 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx
00000.
W I T N E S S E T H:
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WHEREAS, the Company has duly authorized the execution and delivery of
the Indenture to provide for the issuance from time to time of its unsecured
debentures, notes, bonds or other evidences of indebtedness (hereinafter called
the "Debt Securities") to be issued in one or more series, as provided in the
Indenture; and
WHEREAS, the Company desires and has requested the Trustee to join it
in the execution and delivery of this Second Supplemental Indenture in order to
establish and provide for the issuance by the Company of a series of Debt
Securities designated as its 7.95% Subordinated Notes due 2007 in the aggregate
principal amount of $100,000,000, a specimen copy of which is attached hereto as
Exhibit A (the "Notes"), on the terms set forth herein; and
WHEREAS, Section 11.01 of the Indenture provides that a supplemental
indenture may be entered into by the Company and the Trustee without the consent
of any holder of any Debt Securities to, inter alia, establish the terms of any
Debt Securities as permitted by Sections 2.01 and 3.01 of the Indenture,
provided certain conditions are met; and
WHEREAS, the conditions set forth in the Indenture for the execution
and delivery of this Second Supplemental Indenture have been complied with; and
WHEREAS, all things necessary to make this Second Supplemental
Indenture a valid agreement of the Company and the Trustee, in accordance with
its terms, and a valid amendment of, and supplement to, the Indenture have been
done.
NOW THEREFORE, there is hereby established a series (as that term is
used in Section 3.01 of the Indenture) of Debt Securities to be issued under the
Indenture, which series of Debt Securities shall have the terms set forth herein
and in the Notes, and in consideration of the premises and the purchase and
acceptance of the Notes by the holders thereof, the Company covenants and agrees
with the Trustee, for the equal and proportionate benefit of all holders of the
Notes, that the Indenture is supplemented and amended, to the extent and for the
purposes expressed herein, as follows:
ARTICLE ONE
Scope of this Second
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Supplemental Indenture
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Section 1.1. Changes, etc. Applicable Only to the Notes. The
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changes, modifications and supplements to the Indenture effected by this Second
Supplemental Indenture in Sections 2.1 through 2.4 hereof shall be applicable
only with respect to, and govern the terms of, the Notes, which shall be limited
in aggregate principal amount to $100,000,000, except as provided in Section
3.01(2) of the Indenture, and shall not apply to any other Debt Securities which
may be issued under the Indenture unless a supplemental indenture with respect
to such other Debt Securities specifically incorporates such changes,
modifications and supplements.
ARTICLE TWO
Amendments to the Indenture
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Section 2.1. Amendment to Section 1.01. Section 1.01 of the
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Indenture is hereby amended by adding the following definition in its proper
alphabetical order:
"Notes" means $100,000,000 aggregate principal amount of the Company's
7.95% Subordinated Notes due 2007.
Section 2.2. Amendment to Section 5.01. Section 5.01 of the
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Indenture is hereby amended by adding thereto the following additional "Event of
Default" as paragraph (7) thereof, and the existing paragraph (7) shall be
renumbered as paragraph (8):
(7) there shall be a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company or under any
mortgage, indenture or other instrument under which there may be issued or
by which there may be secured or evidenced any indebtedness for money
borrowed by the Company or under any guarantee of payment by the Company of
indebtedness for money borrowed, whether such indebtedness or guarantee now
exists or shall hereafter be created, which default relates to the
obligation to pay the principal of or interest on any such indebtedness or
guarantee when due and payable; provided, however, that in the case of a
default in the payment of interest, such default shall continue for a
period of thirty days; provided, further that no default under this Section
5.01(7) shall exist unless the amount of such default or defaults, either
individually or in the aggregate, is in excess of $15,000,000; or
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Section 2.3. Ranking. The Notes will rank in right of payment, on a
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pari passu basis, with that series of notes issued under the Indenture entitled
"7.30% Subordinated Notes due 2002."
Section 2.4. Terms of the Notes. In accordance with Section 3.01 of
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the Indenture, the Notes are subject to the terms set forth in this Second
Supplemental Indenture including without limitation Exhibit A hereto, the terms
of which are hereby incorporated in their entirety by reference. In addition to
the other terms of the Notes which are set forth elsewhere in this Second
Supplemental Indenture and Exhibit A hereto, the Notes are subject to all of the
provisions of the Indenture including, without limitation, the subordination
provisions contained in Article Sixteen and the Company's legal defeasance
option and covenant defeasance option pursuant to Section 15.02 of the
Indenture, but excluding the sinking fund and conversion provisions set forth in
Articles Fourteen and Seventeen of the Indenture, respectively.
ARTICLE THREE
Miscellaneous
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Section 3.1. Defined Terms. Unless otherwise provided in this Second
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Supplemental Indenture, all defined terms used in this Second Supplemental
Indenture shall have the meanings assigned to them in the Indenture.
Section 3.2. Conflict of Any Provision of Indenture with Trust
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Indenture Act of 1939. If and to the extent that any provision of this Second
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Supplemental Indenture limits, qualifies or conflicts with another provision
included in this Second Supplemental Indenture or in the Indenture which is
required to be included herein or therein by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, as amended, such required
provision shall control.
SECTION 3.3. GOVERNING LAW. THIS SECOND SUPPLEMENTAL INDENTURE AND
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THE NOTES SHALL BE DEEMED TO BE CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN
THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD TO THE CONFLICTS OF LAW
RULES OF SAID STATE.
Section 3.4. Counterparts. This Second Supplemental Indenture may be
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executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
Section 3.5. Effect of Headings. The Article and Section headings
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herein are for convenience only and shall not affect the construction hereof.
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Section 3.6. Severability of Provisions. In case any provision in
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this Second Supplemental Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 3.7. Successors and Assigns. All covenants and agreements in
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this Second Supplemental Indenture by the parties hereto shall bind their
respective successors and assigns and inure to the benefit of their respective
successors and assigns, whether so expressed or not.
Section 3.8. Benefit of Supplemental Indenture. Nothing in this
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Second Supplemental Indenture, express or implied, shall give to any Person,
other than the parties hereto, any Security Registrar, any Paying Agent and
their successors hereunder, and the Holders of the Notes, any benefit or any
legal or equitable right, remedy or claim under this Second Supplemental
Indenture.
Section 3.9. Trustee Not Responsible for Recitals or Sufficiency.
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The recitals contained herein, except the Trustee's certificate of
authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the sufficiency of this Second Supplemental Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed, all as of the day and year first above written.
THE MONEY STORE INC.
By:______________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:______________________________________
Name:
Title:
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EXHIBIT A
[FORM OF FACE OF SUBORDINATED NOTE]
THE MONEY STORE INC.
7.95% Subordinated Notes Due 2007
REGISTERED REGISTERED
No. R-_
CUSIP 60934T AR2 $____________
If this Note is registered in the name of The Depository Trust Company
(the "Depositary") (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) or its
nominee, this Note may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or
by the Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary, unless and until this Note is
exchanged in whole or in part for Notes in definitive form. Unless
this certificate is presented by an authorized representative of the
Depositary to the Company or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or such other name as requested by an authorized
representative of the Depositary (and any payment is made to Cede &
Co. or to such other entity as is requested by an authorized
representative of the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch
as the registered owner hereof, Cede & Co. has an interest herein.
THE MONEY STORE INC., a corporation duly organized and validly
existing under the laws of the State of New Jersey (herein called the "Company",
which term includes any successor corporation under the Indenture, as defined on
the reverse side hereof), for value received hereby promises to pay to
______________, or registered assigns, the principal sum of $______________
(_______________ DOLLARS) on December 1, 2007 in such coin or currency of the
United States of America as at the time of payment shall be legal tender for the
payment of public and private debts, and to pay interest, semi-annually on June
1 and December 1 of each year, commencing June 1, 1998 on said principal sum in
like coin or currency, at the rate per annum specified in the title of this
Note, from December 1, 1997 or from the most recent Interest Payment Date for
which interest has been paid or duly provided for, until payment of said
principal sum has been made or duly provided for. The interest so payable on
each Interest Payment Date will be paid to the Person in whose name this Note
is registered at the close of business on the Regular Record Date, which shall
be the May 15 or November 15 (whether or not a Business Day) next preceding such
Interest
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Payment Date, provided that any such interest not punctually paid or duly
provided for shall be payable as provided in the Indenture.
Payment of the principal of, and premium, if any, on, this Note will
be made in immediately available funds upon surrender of this Note at the
Corporate Trust Office of the Trustee. Interest will be paid by check mailed to
the address of the Person entitled thereto as it appears in the Security
Register on the applicable Regular Record Date or, at the option of the Company,
by wire transfer to an account maintained by such Person with a bank located in
the United States.
THIS NOTE SHALL BE DEEMED A CONTRACT UNDER THE LAWS OF THE STATE OF
NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SAID STATE.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to herein by manual signature, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
THE MONEY STORE INC.
By:_________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
issued under the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK,
as Trustee
By:______________________________
Authorized Signatory
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[REVERSE SIDE OF NOTE]
THE MONEY STORE INC.
7.95% Subordinated Notes Due 2007
This Note is one of a duly authorized issue of Debt Securities of the
Company designated as its 7.95% Subordinated Notes due 2007 (herein called the
"Notes"), limited in aggregate principal amount to $100,000,000, issued and to
be issued under an Indenture dated as of December 1, 1997, as amended and
supplemented by the Second Supplemental Indenture dated as of December 1, 1997
(herein called the "Indenture"), between the Company and The Bank of New York,
as trustee (herein called the "Trustee," which term includes any successor
Trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
duties, obligations and immunities of the Company, the Trustee and the Holders
of the Notes, and the terms upon which the Notes are, and are to be,
authenticated and delivered.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note may be registered on the Security
Register relating to the Notes, upon surrender of this Note for registration of
transfer at the office or agency of the Company maintained for such purpose, and
thereupon one or more new Notes, of authorized denominations and for the same
aggregate principal amount with like terms and conditions, will be issued to the
designated transferee.
The Notes are issuable only as registered Notes without Coupons in the
denominations of $1,000, and integral multiples thereof. As provided in the
Indenture, and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes with like terms and
conditions of different authorized denominations, as requested by the Holder
surrendering the same.
Except as otherwise provided in the Indenture, no service charge will
be made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to due presentment for registration of transfer or exchange of
this Note, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for the purpose of receiving payment as herein provided and for all other
purposes, whether or not this Note be overdue, and neither the Company nor the
Trustee nor any such agent shall be affected by notice to the contrary.
If an Event of Default shall occur with respect to the Notes, the
principal of all the Notes, plus accrued and unpaid interest (and premium, if
any), may be declared due and payable in the manner and with the effect provided
in the Indenture.
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The Notes are not subject to any sinking fund and are not subject to
any redemption prior to maturity. The Notes are not convertible into or
exchangeable for any other securities of the Company.
The Notes are subordinated to all Senior Indebtedness of the Company.
To the extent and in the manner provided in the Indenture, Senior Indebtedness
must be paid before any payment may be made to any Holders of the Notes. Any
Holder by accepting this Note agrees to the subordination and authorizes the
Trustee to give it effect.
In addition to all other rights of Senior Indebtedness described in
the Indenture, the Senior Indebtedness shall continue to be Senior Indebtedness
and entitled to the benefits of the subordination provisions irrespective of any
amendment, modification or waiver of any term of any instrument relating to the
Senior Indebtedness or extension or renewal of the Senior Indebtedness.
The Indenture contains provisions permitting the Company and the
Trustee, with the written consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of each series affected by
such supplemental indenture, voting separately, to enter into supplemental
indentures for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of the Indenture or of modifying in any
manner the rights of the Holders under the Indenture of such Debt Securities, or
Coupons, if any; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Debt Security of each such
series affected thereby, (i) change the Stated Maturity of the principal of, or
installment of interest, if any, on, any Debt Security, or reduce the principal
amount thereof, or the interest thereon or any premium payable upon redemption
thereof, or change the Stated Maturity of or reduce the amount of any payment to
be made regarding any Coupon, or change the Currency or Currencies in which the
principal of (and premium, if any) or interest on such Debt Security is
denominated or payable, or reduce the amount of the principal of a Discount
Security that would be due and payable upon a declaration of acceleration of the
Maturity, or adversely affect the right of repayment or repurchase, if any, at
the option of the Holder, or reduce the amount of, or postpone the date fixed
for, any payment under any sinking fund, or impair the right to institute suit
for the enforcement of any payment on or after the stated Maturity thereof, or
(ii) reduce the percentage in principal amount of Outstanding Debt Securities of
any series, the Holders of which are required to consent to any such
supplemental indenture. The Indenture also contains provisions permitting the
Holders of not less than a majority in principal amount of the Outstanding Debt
Securities of any series, on behalf of the Holders of all the Debt Securities of
any such series, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults or Event of Default under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Note
shall be conclusive and binding upon such Holder and upon all future Holders of
this Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note.
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No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the principal of or the
interest (and premium, if any) on this Note, or any part thereof, or of the
indebtedness represented hereby, or upon any obligation, covenant or agreement
of the Indenture or any indenture supplemental thereto, against any
incorporator, or against any stockholder, officer or director, as such, past,
present or future, of the Company or any predecessor or successor corporation,
either directly or indirectly through the Company, or any such predecessor or
successor corporation whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly agreed and understood that the Indenture or any indenture supplemental
thereto and this Note are solely corporate obligations, and that no personal
liability whatsoever shall attach to, or be incurred by, any such incorporator,
stockholder, officer or director, past, present or future, of the Company or any
predecessor or successor corporation, either directly or indirectly through the
Company or any such predecessor or successor corporation, because of the
indebtedness authorized under the Indenture or under or by reason of any of the
obligations, covenants, promises or agreements contained in the Indenture or in
this Note or to be implied therefrom or herefrom; and that any such personal
liability, by the acceptance hereof and as part of the consideration for the
issue hereof, is expressly waived and released.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Company on this Note and (b) certain restrictive
covenants and the related Defaults and Events of Default, upon compliance by the
Company with certain conditions set forth therein, which provisions apply to
this Note.
All terms used in this Note which are not defined in this Note shall
have the meanings assigned to them in the Indenture.
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The following abbreviations, when used in the inscription on the face
of the within Note, shall be construed as though they were written out in full
according to applicable laws and regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entirety
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT
MIN ACT - ___________________ Custodian _________________________
(Cust) (Minor)
under Uniform Gifts to Minors Act
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(State)
Additional abbreviations may also be used though not in the above list.
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FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
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(Name and Address of Assignee, including zip code)
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the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing
-------------------------------------------------------------------Attorney to
transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the
name as it appears upon the face of the within Note in every particular, without
alteration or enlargement or any change whatever and must be guaranteed.
The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee medallion program),
pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended.
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