indenture

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Indenture

An agreement declaring the benefits and obligations of two or more parties, often applicable in the context of Bankruptcy and bond trading.

The term indenture primarily describes secured contracts and has several applications in U.S. law. At its simplest, an indenture is an agreement that declares benefits and obligations between two or more parties. In bankruptcy law, for example, it is a mortgage or deed of trust that constitutes a claim against a debtor. The most common usage of indenture appears in the bond market. Before a bond is issued, the issuer executes a legally binding indenture governing all of the bond's terms. Finally, the concept of indenture has an ignominious place in the history of U.S. labor. Indentured servants of the seventeenth and eighteenth centuries were commonly European workers who contracted to provide labor for a number of years and in return received passage to the American colonies as well as room and board.

As an investment product that is used to raise capital, a bond is simply a written document by which a government, corporation, or individual promises to pay a definite sum of money on a certain date. The issuer of a bond, in cooperation with an underwriter (i.e., a financial organization that sells the bond to the public), prepares in advance an indenture outlining the terms of the bond. The issuer and the under-writer negotiate provisions such as the interest rate, the maturity date, and any restrictions on the issuer's actions. The last detail is especially important to corporate bonds because corporations Accrue liability upon becoming bond issuers and therefore seek to have the fewest possible restrictions placed on their business behavior by the terms of the indenture. As a consequence, potential buyers of corporate bonds should know what the indenture specifies before buying them.

Federal law governs these indentures. For 50 years, the Trust Indenture Act of 1939 (TIA) (15 U.S.C.A. § 77aaa) was the relevant law. Significant changes in financial markets prompted Congress to amend the TIA through the Securities Act Amendments of 1990 (Pub. L. No. 101-550, 1990; 104 Stat. 2713), which included the Trust Indenture Reform Act (Pub. L. No. 101-550, 104 Stat. 2713). The reforms simplified the writing of indentures, recognized the increasing internationalization of corporations by creating opportunities for foreign institutions to serve as trustees, and revised standards for conflicts of interest. The reforms also broadened the authority of the Securities and Exchange Commission.

In early American history, indenture was a form of labor contract. Beginning during the colonial period, employers in the largely agricultural economy faced a labor shortage. They addressed it in two ways: by buying slaves and by hiring indentured servants. The former were Africans who were brought to the colonies against their will to serve for life; the latter were generally Europeans from England and Germany who had entered multiyear employment contracts. From the late sixteenth century to the late eighteenth century, approximately half of the 350,000 European immigrants to the colonies were indentured servants. During the seventeenth century, these servants outnumbered slaves.

An indentured servant agreed to a four-to seven-year contract, and in return received passage from Europe and guarantees of work, food, and lodging. Colonial courts enforced the contracts of indentured servants, which were often harsh. Employers were seen as masters, and the servants had not only to work for them but also to obey their orders in all matters. For some, indentured servitude was not a Voluntary Act. Impoverished women and children were pressed into servitude, as were convicts. Nevertheless, this servitude was not equivalent to Slavery. Slaves remained slaves for life, whereas indentured servants were released at the end of their contracts. Moreover, as parties to a contract, indentured servants had rights that slaves never enjoyed. The practice of indentured servitude persisted into the early nineteenth century.

Further readings

Ballam, Deborah A. 1996. "Exploding the Original Myth Regarding Employment-At-Will: The True Origins of the Doctrine." Berkeley Journal of Employment and Labor Law 17.

——. 1995. "The Traditional View on the Origins of the Employment-At-Will Doctrine: Myth or Reality?" American Business Law Journal 33 (fall).

Riger, Martin. 1991."The Trust Indenture as Bargained Contract: The Persistence of Myth." Journal of Corporation Law 16 (winter).

indenture

n. a type of real property deed in which two parties agree to continuing mutual obligations. One party may agree to maintain the property, while the other agrees to make periodic payments. 2) a contract binding one person to work for another. 3) v. to bind a person to work for another.

indenture

noun agreement, agreement to work, apprenticeship agreement, arrangement, commitment, contract, contract to work, contractual obligation, connractual statement, covenant, deed of agreement, instrument, mutual agreement, mutual undertaking, pact, pactum, stipulation, undertaking
See also: bind, bond, compact, contract, liability, obligate, obligation, pact, security, servitude, specialty, stock, undertake

indenture

see APPRENTICE.

INDENTURE, conveyancing. An instrument of writing containing a conveyance or contract between two or more persons, usually indented or cut unevenly, or in and out, on the top or, side.
     2. Formerly it was common to make two instruments exactly alike, and it was then usual to write both on the same parchment, with some words or letters written between them, through which the parchment was cut, either in a straight or indented line, in such a manner as to leave one-half of the word on one part, and half on the other. The instrument usually commences with these words, "This indenture," which were not formerly sufficient, unless the parchment or paper was actually indented to make an indenture 5 Co. 20; but now, if the form of indenting the parchment be wanting, it may be supplied by being done in court, this being mere form. Besides, it would be exceedingly difficult with even the most perfect instruments, to out parchment or paper without indenting it. Vide Bac. Ab. Leases, &c. E 2; Com. Dig. Fait, C, and note d; Litt. sec. 370; Co. Litt. 143 b, 229 a; Cruise, Dig t. 32, c. 1, s. 24; 2 Bl. Com. 294; 1 Sess. Cas. 222.

References in periodicals archive ?
The brief report 'Limited Debt Covenant Protection for Motorola Bondholders in LBO' provides a detailed LBO scenario as well as additional analysis on Motorola's bond indentures.
Under the indentures, if KB Home fails to cure a default within the 60 days after notice is effectively given, the default could become an "event of default," allowing the trustee or the holders of at least 25% in aggregate outstanding principal amount of a series of notes issued under such indenture to accelerate the maturity of such series.
Statements included in this press release about Impsat's Notes, the consent solicitation, the proposed amendments to the indentures, and the proposed merger are forward-looking statements.
50% Convertible Senior Subordinated Notes due 2011 for a waiver of compliance by Amkor with certain covenants in the indentures governing each series of notes.
The proposed amendments to the indentures provide the Company with additional time to comply with these reporting requirements and require consent of the holders of a majority in aggregate principal amount of the outstanding 2008 Notes or 2015 Notes, as applicable.
The financial covenants incorporated in REIT bond indentures generally include the following requirements; issuers are prohibited from exceeding a Total Debt to Total Assets ratio of 60%, Secured Debt to Total Assets is restricted to 40%, issuers must maintain unencumbered assets with an undepreciated book value 1.
Any NRG Notes not tendered and purchased pursuant to the tender offer will remain outstanding and the holders thereof will be bound by the amendments contained in the supplemental indenture eliminating substantially all of the restrictive covenants in the indenture even though they have not consented to the amendments.
Notwithstanding Bally's solicitation of waivers, no assurance can be given that an event of default under the indentures will not occur in the future.
As previously announced, the Company recently received default notices under its indentures that would have triggered a cross-default under Bally's credit agreement on August 14, 2005.
The provisions applicable only to the Exchange Notes are set forth in a second supplemental indenture entered into by Nextel and the trustee.
As a result, delivery of these notices could result in acceleration of Bally's obligations on or after August 14, 2005, under the credit agreement and the indentures, causing over $700 million of Bally's debt obligations to become immediately due and payable.
Although it is the position of Hollinger that the Receiver Action did not result in a change of control of Hollinger, within the meaning of the indentures (the "Indentures") governing Hollinger's senior secured notes, in view of potential assertions by noteholders that such a change of control has occurred, Hollinger determined to make the change of control offer that would be required by the Indentures in that event.