--------------------------------------------------------------------------------
SENTINEL FINANCING, LTD., L.P.
AND
-------------------------
-------------------------------------
INDENTURE
DATED AS OF , 1997
----------
-------------------------------------
$15,000,000
12% SECURED FIXED RATE NOTES DUE 2002
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE. . . . . . . . 1
Section 1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Other Definitions. . . . . . . . . . . . . . . . . . . . 3
Section 1.3 Incorporation by Reference of Trust Indenture Act. . . . 3
Section 1.4 Rules of Construction. . . . . . . . . . . . . . . . . . 4
ARTICLE 2
THE SECURITIES. . . . . . . . . . . . . . . 4
Section 2.1 Form and Dating. . . . . . . . . . . . . . . . . . . . . 4
Section 2.2 Execution and Authentication . . . . . . . . . . . . . . 5
Section 2.3 Registrar and Paying Agent . . . . . . . . . . . . . . . 5
Section 2.4 Paying Agent to Hold Money in Trust . . . . . . . . . . 6
Section 2.5 Securityholder Lists . . . . . . . . . . . . . . . . . . 6
Section 2.6 Transfer and Exchange. . . . . . . . . . . . . . . . . . 6
Section 2.7 Replacement Securities . . . . . . . . . . . . . . . . . 7
Section 2.8 Outstanding Securities . . . . . . . . . . . . . . . . . 7
Section 2.9 Treasury Securities. . . . . . . . . . . . . . . . . . . 7
Section 2.10 Temporary Securities . . . . . . . . . . . . . . . . . . 8
Section 2.11 Cancellation.. . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 3
REDEMPTION . . . . . . . . . . . . . . . . 8
Section 3.1 Optional Redemption. . . . . . . . . . . . . . . . . . . 8
Section 3.2 Notices to Trustee . . . . . . . . . . . . . . . . . . . 8
Section 3.3 Selection of Securities to Be Redeemed . . . . . . . . . 9
Section 3.4 Notice of Redemption . . . . . . . . . . . . . . . . . . 9
Section 3.5 Effect of Notice of Redemption . . . . . . . . . . . . . 10
Section 3.6 Deposit of Redemption Price. . . . . . . . . . . . . . . 10
Section 3.7 Securities Redeemed in Part. . . . . . . . . . . . . . . 10
ARTICLE 4
COVENANTS . . . . . . . . . . . . . . . . 10
Section 4.1 Payment of Principal and Interest. . . . . . . . . . . . 10
Section 4.2 SEC Reports, Financial Reports . . . . . . . . . . . . . 11
Section 4.3 Compliance Certificate . . . . . . . . . . . . . . . . . 11
i
ARTICLE 5
SECURITY. . . . . . . . . . . . . . . . . 12
Section 5.1 Security Agreement . . . . . . . . . . . . . . . . . . . 12
Section 5.2 Certificate and Opinions . . . . . . . . . . . . . . . . 12
Section 5.3 Authorization of Actions to be Taken by the Trustee
Under the Security Documents . . . . . . . . . . . . . . 12
Section 5.4 Authorization of Receipt of Funds by the Trustee Under
the Security Documents . . . . . . . . . . . . . . . . . 12
Section 5.5 Termination of Security Interests. . . . . . . . . . . . 12
ARTICLE 6
DEFAULTS AND REMEDIES. . . . . . . . . . . . . . 13
Section 6.1 Events of Default. . . . . . . . . . . . . . . . . . . . 13
Section 6.2 Acceleration . . . . . . . . . . . . . . . . . . . . . . 14
Section 6.3 Other Remedies . . . . . . . . . . . . . . . . . . . . . 14
Section 6.4 Waiver of Past Defaults; Postponement of Interest
Payment. . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6.5 Control by Majority. . . . . . . . . . . . . . . . . . . 15
Section 6.6 Limitation on Suits. . . . . . . . . . . . . . . . . . . 15
Section 6.7 Rights of Holders to Receive Payment . . . . . . . . . . 16
Section 6.8 Collection Suit by Trustee . . . . . . . . . . . . . . . 16
Section 6.9 Trustee May File Proofs of Claim . . . . . . . . . . . . 16
Section 6.10 Priorities . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.11 Undertaking for Costs. . . . . . . . . . . . . . . . . . 17
ARTICLE 7
TRUSTEE. . . . . . . . . . . . . . . . . 17
Section 7.1 Duties of Trustee. . . . . . . . . . . . . . . . . . . . 17
Section 7.2 Rights of Trustee. . . . . . . . . . . . . . . . . . . . 18
Section 7.3 Individual Rights of Trustee . . . . . . . . . . . . . . 19
Section 7.4 Trustee's Disclaimer . . . . . . . . . . . . . . . . . . 19
Section 7.5 Notice of Defaults . . . . . . . . . . . . . . . . . . . 20
Section 7.6 Reports by Trustee to Holders. . . . . . . . . . . . . . 20
Section 7.7 Compensation and Indemnity . . . . . . . . . . . . . . . 20
Section 7.8 Replacement of Trustee . . . . . . . . . . . . . . . . . 21
Section 7.9 Successor Trustee by Merger, etc . . . . . . . . . . . . 22
Section 7.10 Eligibility; Disqualification. . . . . . . . . . . . . . 22
Section 7.11 Preferential Collection of Claims Against Company. . . . 22
ARTICLE 8
DISCHARGE OF INDENTURE. . . . . . . . . . . . . . 22
Section 8.1 Termination of Company's Obligations . . . . . . . . . . 22
Section 8.2 Application of Trust Money . . . . . . . . . . . . . . . 23
ii
Section 8.3 Repayment to Company . . . . . . . . . . . . . . . . . . 23
Section 8.4 Reinstatement. . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE 9
AMENDMENTS . . . . . . . . . . . . . . . . 24
Section 9.1 Without Consent of Holders . . . . . . . . . . . . . . . 24
Section 9.2 With Consent of Holders. . . . . . . . . . . . . . . . . 25
Section 9.3 Compliance with Trust Indenture Act. . . . . . . . . . . 26
Section 9.4 Revocation and Effect of Consents. . . . . . . . . . . . 26
Section 9.5 Notation on or Exchange of Securities. . . . . . . . . . 27
Section 9.6 Trustee Protected. . . . . . . . . . . . . . . . . . . . 27
ARTICLE 10
INTENTIONALLY LEFT BLANK. . . . . . . . . . . . . 27
ARTICLE 11
MISCELLANEOUS . . . . . . . . . . . . . . . 27
Section 11.1 Trust Indenture Act Controls . . . . . . . . . . . . . . 27
Section 11.2 Notices. . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 11.3 Communication by Holders with Other Holders. . . . . . . 28
Section 11.4 Certificate and Opinion as to Conditions Precedent . . . 29
Section 11.5 Statements Required in Certificate or Opinion. . . . . . 29
Section 11.6 Rules by Trustee and Agents. . . . . . . . . . . . . . . 29
Section 11.7 No Recourse Against Others . . . . . . . . . . . . . . . 29
Section 11.8 Duplicate Originals. . . . . . . . . . . . . . . . . . . 30
Section 11.9 Governing Law. . . . . . . . . . . . . . . . . . . . . . 30
Section 11.10 No Adverse Interpretation of Other Agreements. . . . . . 30
Section 11.11 Successors . . . . . . . . . . . . . . . . . . . . . . . 30
Section 11.12 Severability . . . . . . . . . . . . . . . . . . . . . . 30
Section 11.13 Table of Contents, Headings, Etc . . . . . . . . . . . . 30
SIGNATURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
EXHIBIT A (Face of Security). . . . . . . . . . . . . . . . . . . . . . . . 32
(Back of Security). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ASSIGNMENT FORM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
iii
CROSS-REFERENCE TABLE
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
Section 310(a)(1) 7.10
(a)(2) 7.10
11.10
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 7.10
(c) Not Applicable
Section 311(a) 7.11
(b) 7.11
(c) Not Applicable
Section 312(a) 2.5
(b) 11.3
(c) 11.3
Section 313(a) 7.6
11.10
(b)(1) Not Applicable
(b)(2) 7.6
(c) 7.6
(d) 7.6
Section 314(a) 4.2
(b) 5.2
(c)(1) 11.4
(c)(2) 11.4
(c)(3) Not Applicable
(d) 5.2
(e) 11.5
Section 315(a) 7.1
(b) 7.5
(c) 7.1
(d)(1) 7.1
(d)(2) 7.1
(d)(3) 7.1
6.5
(e) 6.11
Section 316(a)(1)(A) 6.5
(a)(1)(B) 6.4
(a)(2) Not Applicable
(b) 6.7
Section 317(a)(1) 6.8
(a)(2) 6.9
(b) 2.4
Section 318(a) 11.1
INDENTURE dated as of ________ , 1997 between Sentinel Financing,
Ltd., L.P., a Florida limited partnership (the "Company"), and
_____________________________, a national banking association as Trustee
("Trustee").
Each party agrees as follows for the benefit of the other party
and for the equal and ratable benefit of the Holders of the Company's 12%
Secured Fixed Rate Notes due __________, 2002 (the "Securities"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.1 DEFINITIONS.
"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" (including with correlative meanings, the terms "controlled by" and
"under common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities or by agreement or otherwise.
"AGENT" means any Registrar, Paying Agent, or co-registrar.
"BUSINESS DAY" means a day that is not a Legal Holiday.
"COLLATERAL" has the meaning assigned to it in the Security
Agreement.
"COMPANY" means the party named as such above.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address
of the Trustee specified in Section 11.2 or such other address as the Trustee
may specify by notice to the Company.
"CUSTODIAN AGREEMENT" means the Custodian Agreement among the
Company, as debtor, the Trustee, a secured party and
____________________________, as custodian to hold certain of the Collateral to
perfect secured party's security interest therein.
"DEFAULT" means any event which is, or after notice or passage of
time would be, an Event of Default.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
1
"HOLDER" or "SECURITYHOLDER" means a Person in whose name a
Security is registered.
"INDENTURE" means this Indenture as amended from time to time.
"INTEREST PAYMENT DATE" means the stated due date of an
installment of interest on the Securities.
"LEGAL HOLIDAY" means a Saturday, Sunday or a day on which
banking institutions in the State of New York or Florida are not required to be
open. If a payment date occurs on a Legal Holiday, such payment date shall
occur the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
"LIEN" means any mortgage, pledge, lien, encumbrance, charge or
adverse claim affecting title or resulting in a charge against real or personal
property or a security interest of any kind (including any conditional sale or
other title retention agreements, any lease in the nature thereof, any option or
other agreement to sell and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"OFFICER" means Xxxx Xxxxx or Xxxxxx Xxxxxxx.
"OFFICERS' CERTIFICATE" means a certificate signed by any two
Officers.
"OPINION OF COUNSEL" means a written opinion from legal counsel
who is acceptable to the Trustee. The counsel may be an employee of or counsel
to the Company or the Trustee. See sections 11.4 and 11.5.
"PERSON" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"RECORD DATES" means the 5th day of each month.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the Securities described above issued under
this Indenture.
"SECURITY AGREEMENT" means the Security Agreement, of even date
hereof, between the Company, as debtor, and the Trustee, as secured party.
"SECURITY DOCUMENTS" means the Security Agreement and the
Custodian Agreement.
"SECURITYHOLDER" or "HOLDER" means a Person in whose name a
Security is registered.
2
"SUBSIDIARY" of any specified Person means (i) a corporation a
majority of whose capital stock with voting power, under ordinary circumstances,
to elect directors is at the time, directly or indirectly, owned by such Person
or by such Person and a Subsidiary or Subsidiaries of such Person or by a
Subsidiary or Subsidiaries of such Person or (ii) any other Person (other than a
corporation) in which such Person or Person and a Subsidiary or Subsidiaries of
such Person or a Subsidiary or Subsidiaries of such Person directly or
indirectly, at the date of determination thereof has at least majority ownership
interest.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA.
"TRUSTEE" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture 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.
SECTION 1.2 OTHER DEFINITIONS.
Defined in
Term Section
---- ----------
"Affiliate Transaction" 4.14
"Bankruptcy Law" 6.1
"Custodian" 6.1
"Event of Default" 6.1
"Optional Redemption" 3.1
"Paying Agent" 2.3
"Redemption Date" 3.1
"Redemption Price" 3.1
"Registrar" 2.3
"Transfer Date" 6.1
"U.S. Government Obligations" 8.1
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;
3
"INDENTURE SECURITY HOLDER" means a Securityholder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
and
"OBLIGOR" on the Securities means the Company.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
SECTION 1.4 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles;
(3) references to "generally accepted accounting principles"
shall mean generally accepted accounting principles in effect as of the time
when and for the period as to which such accounting principles are to be
applied;
(4) "or" is not exclusive;
(5) words in the singular include the plural, and in the plural
include the singular;
(6) provisions apply to successive events and transactions; and
(7) "herein", "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or other
Subdivision.
ARTICLE 2
THE SECURITIES
SECTION 2.1 FORM AND DATING.
The Securities, and the Trustee's certificate of authentication,
shall be substantially in the form of Exhibit A, which is part of this
Indenture. The Securities may have notations, legends or endorsements required
by law, stock exchange rule or usage. The Company shall
4
approve the form of the Securities and any notation, legend or endorsement on
them. Each Security shall be dated the date of its authentication.
The terms and provisions contained in the Securities shall
constitute, and are hereby expressly made, a part of this Indenture and to the
extent applicable the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
SECTION 2.2 EXECUTION AND AUTHENTICATION.
Two Officers shall sign, or one Officer shall sign and one
Officer shall attest to the Security for the Company by manual or facsimile
signature. The Company's seal (if it has one) shall be impressed, affixed,
imprinted or reproduced on the Securities and may be in facsimile form.
If an Officer whose signature is on a Security was an officer at
the time of such execution but no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless and
the Company shall nevertheless be bound by the terms of the Securities and this
Indenture.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
The Trustee shall authenticate or cause to be authenticated
Securities for original issue in the aggregate principal amount of up to
$15,000,000. The Company shall deliver to the Trustee prior to the issuance of
the Securities a written order of the Company signed by two Officers specifying
the amount of Securities to be authenticated and the date on which the original
issue of Securities is to be authenticated. The aggregate principal amount of
Securities outstanding at any time may not exceed $15,000,000 except as provided
in Section 2.7.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such authenticating
agent. An authenticating agent has the same rights as an Agent to deal with the
Company or an Affiliate.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 2.3 REGISTRAR AND PAYING AGENT.
The Company shall maintain in the [where Trustee is located]
[Borough of Manhattan, City of New York, State of New York] and in such other
locations as it shall determine, (i) an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar") and (ii) an
office or agency where Securities may be presented for
5
payment ("Paying Agent"). The Registrar shall keep a register of the Securities
and of their transfer and exchange. The Company may appoint one or more
co-registrars, which shall include any authenticating agent appointed pursuant
to Section 2.2 and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent. The Company may change any
Registrar or Paying Agent without prior notice of any Securityholder. The
Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture. If the Company fails to appoint or maintain another
entity as Registrar or Paying Agent, the Trustee shall act as such. The Company
may act as Registrar or Paying Agent.
The Company shall enter into an appropriate written agency
agreement with any Agent not a party to this Indenture, which agreement shall
implement the provisions of this Indenture that relate to such agent, and shall
furnish a copy of each such agreement to the Trustee.
SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that such Paying Agent will hold in trust for the
benefit of Securityholders or the Trustee all money held by the Paying Agent for
the payment of principal of or interest on the Securities (whether such money
has been paid to it by the Company or any other obligor on the securities), and
such Paying Agent will notify the Trustee in writing of any default by the
Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other
than the Company) shall have no further liability for the money. If the Company
acts as Paying Agent, it shall segregate and hold in a separate trust fund for
the benefit of the Securityholders and Trustee all money held by it as Paying
Agent.
SECTION 2.5 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
Securityholders and otherwise comply with TIA Section 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least five
Business Days before each Interest Payment Date and at such other times as the
Trustee may request in writing a list of the names and addresses of
Securityholders in such form and as of such date as the Trustee may reasonably
require and otherwise comply with TIA Section 312.
SECTION 2.6 TRANSFER AND EXCHANGE.
Where Securities are presented to the Registrar or a co-registrar
with a request to register the transfer or to exchange them for an equal
principal amount of Securities of other authorized denominations, the Registrar
shall register the transfer or make the exchange if its requirements for such
transactions are met. To permit registrations of transfer and exchanges, the
Company shall issue and the Trustee shall authenticate Securities at the
Registrar's or co-registrar's request. No service charge shall be made for any
registration of transfer or exchange
6
(except as otherwise expressly permitted herein), but the Company may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities during a period beginning at the opening of
business 15 days before the day of any selection of Securities for redemption
under Section 3.3 and ending at the close of business on the day of selection,
or (ii) to register the transfer or exchange of any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
SECTION 2.7 REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims and submits an affidavit or other evidence,
satisfactory to the Trustee to the effect that the Security has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security if the Trustee's requirements are met,
unless either the Company or the Trustee has received actual notice that the
Security to be replaced is held by a bona fide purchaser. If required by the
Trustee or the Company, an indemnity bond must be sufficient in the judgment of
both the Company and the Trustee to protect the Company, the Trustee, any Agent
or any authenticating agent from any loss which any of them may suffer if a
Security is replaced. The Trustee shall not be required to bear the cost of any
indemnity bond. The Company may charge the Holder for its expenses in replacing
a Security.
Every replacement Security is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Securities duly issued hereunder.
SECTION 2.8 OUTSTANDING SECURITIES.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.7, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser. A Security does not cease
to be outstanding because the Company or an Affiliate of the Company holds the
Security.
If Securities are considered paid under Section 4.1, they cease
to be outstanding and interest on them ceases to accrue.
SECTION 2.9 TREASURY SECURITIES.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, amendment, supplement,
waiver or consent, Securities owned
7
by the Company or an Affiliate of the Company shall be disregarded, except that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, amendment, supplement waiver or consent, only
Securities which the Trustee actually knows are so owned shall be so
disregarded.
SECTION 2.10 TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities.
SECTION 2.11 CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee or, at the direction of the Trustee, the Registrar or the
Paying Agent (other than the Company or an Affiliate of the Company), and no one
else shall cancel all Securities surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall dispose of cancelled
Securities at the written direction of the Company. The Company may not issue
new Securities that it has paid or that have been delivered to the Trustee for
cancellation.
ARTICLE 3
REDEMPTION
SECTION 3.1 OPTIONAL REDEMPTION.
The Company shall have the right to redeem ("Optional
Redemption") all or part of the Securities at 100% of the principal amount
outstanding ("Redemption Price") plus accrued and unpaid interest to the date of
redemption (a "Redemption Date") (subject to the right of Holders of record on a
Record Date to receive interest due on an Interest Payment Date that is on or
prior to such Redemption Date and subject to the provisions set forth in Section
3.5).
SECTION 3.2 NOTICES TO TRUSTEE.
If the Company elects to redeem securities pursuant to an
Optional Redemption, it shall notify the Trustee in writing of the Redemption
Date and the principal amount of Securities to be redeemed and whether it wants
the Trustee to give notice of redemption of the Holders. In the case of any
such redemption, the Company shall deliver to the Trustee an Officer's
Certificate stating that such redemption will comply with the conditions for
such redemption.
8
The Company shall give each notice provided for in this Section
3.2 at least 45 days before the Redemption Date (unless a shorter notice period
shall be satisfactory to the Trustee). Any such notice may be cancelled at any
time prior to notice of such redemption being mailed to any Holder and shall
thereby be void and of no effect.
SECTION 3.3 SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities are to be redeemed pursuant to
an Optional Redemption, the Trustee shall select Securities to be redeemed on a
pro rata basis or in such manner as it deems appropriate and fair. The Trustee
shall make the selection not more than 30 days and not less than 15 days before
the Redemption Date from outstanding Securities not previously called for
redemption. The Trustee shall promptly notify the Company of the Securities or
portions of Securities to be called for redemption. The Trustee may select for
redemption portions of the principal of Securities that have denominations
higher than $1,000. Securities and portions of them it selects shall be in
amounts of $1,000 or whole multiples of $1,000. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption.
SECTION 3.4 NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail a notice of redemption by first class mail, postage
prepaid, to the Trustee and each Holder whose Securities are to be redeemed to
such Holder's last address as then shown on the registry books of the Registrar.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the redemption price, including the amount of accrued and
unpaid interest to be paid upon such redemption;
(3) if any Security is being redeemed in part, the portion of
the principal amount of such Security to be redeemed and that, after the
Redemption Date, upon surrender of such Security, a new Security or Securities
in principal amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be surrendered to
the Paying Agent at the address specified in such notice to collect the
redemption price;
(6) that interest on Securities called for redemption ceases to
accrue on and after the Redemption Date; and
(7) that notice is being sent pursuant to this Section 3.4.
9
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
SECTION 3.5 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Securities called for
redemption become due and payable on the Redemption Date and at the price set
forth in the Security plus accrued and unpaid interest to the Redemption Date.
Upon surrender to the Trustee or, if the Trustee is no longer the paying agent,
to the Paying Agent, such Securities called for redemption shall be paid at the
Redemption Price, including interest, if any, accrued and unpaid to the
Redemption Date, provided that if the Redemption Date is on or after a regular
Record Date on or prior to the Interest Payment Date to which such Record Date
relates, the accrued interest shall be payable to the Holder of the redeemed
Securities registered on the relevant Record Date and no additional interest
will be payable to Holders of the redeemed Securities on the Redemption Date;
and provided further, that if a Redemption Date is a Legal Holiday, payment
shall be made on the next succeeding Business Day and no interest shall accrue
for the period from such Redemption Date to such succeeding Business Day.
SECTION 3.6 DEPOSIT OF REDEMPTION PRICE.
At least one Business Day prior to the Redemption Date, the
Company shall deposit with the Trustee or with the Paying Agent (other than the
Company) money sufficient to pay the Redemption Price of and accrued interest
on, all Securities to be redeemed on such Redemption Date. The Trustee or the
Paying Agent shall promptly return to the Company any money so deposited which
is not required for that purpose.
SECTION 3.7 SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the
Trustee shall cancel the Security and the Company shall issue and the Trustee
shall authenticate for the Holder at the expense of the Company, a new Security
equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE 4
COVENANTS
SECTION 4.1 PAYMENT OF PRINCIPAL AND INTEREST.
The Company shall pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities on the
dates and in the manner provided in the Securities and this Indenture.
Principal and interest shall be considered paid on the date due if the Paying
Agent (other than the Company) holds on that date money designated for and
sufficient to pay all principal and interest then due pursuant to the terms of
Section 2.4 hereof.
10
To the extent lawful, any installment of interest on the Notes
which is not paid when due will accrue interest at the lesser of 18%, compounded
quarterly, or the highest lawful rate of interest from the due date until paid.
SECTION 4.2 SEC REPORTS, FINANCIAL REPORTS.
The Company shall deliver to the Trustee within 15 days after it
files them 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 Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
If the Company is not subject to, or for any reason is not
complying with, the requirements of such Sections 13 or 15(d) of the Exchange
Act, the Company shall file with the Trustee, within 15 days after it would have
been required to file such with SEC, quarterly and annual reports and
information, documents or other reports comparable to that which the Company
would have been required to file with the SEC if it were subject to the
requirements of Section 13 or 15(d) of the Exchange Act. Annual financial
statements shall be certified (without qualification with respect to the Company
as a going concern, qualifications resulting from the scope of the audit, or
qualifications with respect to departures from generally accepted accounting
principles other than departures which are not material and which do not cause
the financial statements to fail to accurately reflect the financial condition
of the Company) by the Company's independent public accountants. All such
financial statements shall be prepared in accordance with generally accepted
accounting principles consistently applied (except for departures with which the
accountants concur and normal year-end adjustments, which in the opinion of the
Company are necessary for fair presentation).
The Company also shall comply with the provisions of TIA Section
314(a).
SECTION 4.3 COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee, within 90 days after
the end of each fiscal quarter of the Company, an Officers' Certificate stating
that a review of the activities of the Company during the preceding fiscal
quarter has been made under the supervision of the signing Officers with a view
to determining whether the Company has kept, observed, performed and fulfilled
its obligations under this Indenture, and further stating, as to each such
Officer signing such certificate, that to the best of his knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions hereof (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which he may have knowledge) and that to the best of his knowledge no event
has occurred and remains in existence by reason of which payments on account of
the principal of or interest, if any, on the Securities are prohibited or if
such event has occurred, a description of the event.
11
ARTICLE 5
SECURITY
SECTION 5.1 SECURITY AGREEMENT.
Each Securityholder, by accepting a Security, agrees to all of
the terms and provisions of the Security Documents, as the same may be in effect
or may be amended from time to time. The due and punctual payment of interest
and the principal of the Securities when and as the same shall be due and
payable, whether at maturity, by acceleration, or otherwise, and interest on the
overdue principal of the Securities and payment and performance of all other
obligations of the Company to the Holders or the Trustee under this Indenture
and the Securities, according to the terms hereunder or thereunder, shall be
secured as provided in the Security Documents.
SECTION 5.2 CERTIFICATE AND OPINIONS.
The Company shall cause (a) TIA Section 314(b), relating to
Opinions of Counsel regarding the Lien of the Security Documents and (b) TIA
Section 314(d), relating to the release of Collateral from the Lien of the
Security Documents and Officers' Certificates or other documents regarding fair
value of the Collateral, to be complied with to the extent applicable. Any
certificate or opinion required by TIA Section 314(d) may be made by an Officer
to the extent permitted by TIA Section 314(d).
SECTION 5.3 AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER THE
SECURITY DOCUMENTS.
The Trustee may, in its sole discretion and without the consent
of the Securityholders, take all actions it deems necessary or appropriate in
order to (i) enforce or effect the Security Documents and (ii) collect and
receive any and all amounts payable in respect of the obligations of the Company
hereunder.
SECTION 5.4 AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE
SECURITY DOCUMENTS.
The Trustee is authorized to receive any funds for the benefit of
Securityholders distributed under the Security Documents and to make further
distributions of such funds to the Holders according to the provisions of this
Indenture.
SECTION 5.5 TERMINATION OF SECURITY INTERESTS.
This Article 5 shall terminate upon delivery of a certificate to
the Custodian under the Security Documents stating that obligations of the
Securities have been paid in full.
12
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(1) the Company fails to pay any installment of interest on
the Securities when the same becomes due and payable;
(2) the Company fails to pay all or any part of the
principal of any Security when the same becomes due and payable at maturity,
upon redemption, by acceleration or otherwise;
(3) the Company fails to observe or perform any covenant,
condition or agreement on the part of the Company to be observed or performed
pursuant to the Securities, the Security Documents, or this Indenture.
(4) the Company or any Subsidiary of the Company pursuant
to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief
against it in an involuntary case or proceeding,
(C) consents to the filing of a petition seeking
reorganization or relief under any applicable Bankruptcy Law, or
to the appointment of a receiver of it or for all or
substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) admits in writing its inability to pay its debts
generally as they become due;
(5) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Subsidiary in an involuntary case,
(B) appoints a Receiver of the Company for all or
substantially all of its property, or
13
(C) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 90 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar federal or state law for the relief of debtors. The term "Receiver"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
An event described in clause (3) is not an Event of Default until
the Trustee or the Holders of at least majority in principal amount of the then
outstanding Securities notify the Company and Trustee of such Default and the
Company does not cure the Default within 90 days after receipt of the notice.
The notice in either instance must specify the Default, demand that it be
remedied and state that the notice is a "Notice of Default." The Trustee shall
not be charged with knowledge of any Default unless actual notice thereof or
written notice thereof shall have been given to the Trustee by the Company, by
the Holder, by the Trustee then acting under any indenture or other instrument
under which a default shall have occurred, by the Paying Agent, or by the
Holders of at least 50% in the aggregate amount of the Securities at the time
outstanding, provided that failure by any such party to notify the Trustee shall
not affect whether there is a Default or Event of Default and provided, further,
that the Company shall immediately notify the Trustee if it receives a notice of
default hereunder.
SECTION 6.2 ACCELERATION.
If an Event of Default occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least a majority in principal amount
of the then outstanding Securities by notice to the Company and the Trustee, may
declare the unpaid principal of and any accrued interest on all the outstanding
Securities to be due and payable immediately. Upon such declaration such
principal and interest shall be due and payable immediately. If an Event of
Default specified in clause (4) or (5) of Section 6.1 occurs, the unpaid
principal of and any accrued interest on the outstanding Securities shall IPSO
FACTO become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder. The Holders of a majority in
principal amount of the then outstanding Securities by notice to the Trustee may
rescind an acceleration and its consequences if (i) the rescission would not
conflict with any judgment or decree, (ii) existing Events of Default have been
cured or waived except nonpayment of principal or interest that has become due
solely because of the acceleration, (iii) to the extent the payment of such
interest is lawful, interest on overdue installments of interest and overdue
principal, which has become due otherwise than by declaration of acceleration,
has been paid and (iv) all payments due to the Trustee or any predecessor
Trustee under Section 7.7 have been made.
SECTION 6.3 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal or interest on
the Securities or to enforce the performance of any provision of the Securities,
the Security Documents, or this Indenture.
14
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 proceeding. A
delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Notwithstanding anything to the contrary in this Agreement, the
Trustee is required to proceed against and liquidate all Collateral under the
Security Documents before proceeding against any other assets of the Company.
SECTION 6.4 WAIVER OF PAST DEFAULTS; POSTPONEMENT OF INTEREST PAYMENT.
The Holders of a majority in principal amount of the then
outstanding Securities by notice to the Trustee may waive an existing Default or
Event of Default and its consequences except a continuing Default or Event of
Default in the payment of the principal of or interest on any Security. The
Holders of not less than 75% in principal amount of the then outstanding
Securities may consent on behalf of the Holders of all such Securities to the
postponement of any interest payment for a period not exceeding three (3) years
from its due date.
SECTION 6.5 CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the then
outstanding 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 the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that is unduly prejudicial
to the rights of other Securityholders, or would involve the Trustee in personal
liability. The Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 6.6 LIMITATION ON SUITS.
No Holder of any Security shall have any right to order or direct
the Trustee to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or Trustee, or for any
other remedy hereunder, unless
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of not less than a majority in principal amount
of the then outstanding Securities make a written request to the Trustee
to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
15
(5) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Securities do not give the
Trustee a direction inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of another
Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Security to receive payment of principal of and interest on
the Security, on or after the respective due dates expressed in the Security, or
to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of the
Holder.
SECTION 6.8 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.1 occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company or any other obligor on the Securities for
the whole amount of principal and interest remaining unpaid on the Securities
and interest on overdue principal and, to the extent that payment of such
interest is lawful, overdue interest, in each case at the rate per annum borne
by the Securities and such further amount as shall be sufficient to cover the
cost and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.9 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 Securityholders allowed in any judicial proceedings relative to
the Company (or any other obligor upon the Securities), its creditors or its
property and, unless prohibited by law, or by applicable regulations, may vote
on behalf of the Holders in the election of a trustee in bankruptcy or other
Person performing similar functions and shall be entitled and empowered to
collect, receive and distribute any monies or other property payable or
deliverable on any claims and any custodian in any judicial proceeding is hereby
authorized by each Securityholder to make any and all payments to the Trustee
or, in the event that the Trustee shall consent, directly to the
Securityholders. To the extent that the payment of any compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7, shall be denied for any reason,
payment shall be secured by a senior claim (to which the Securities shall be
subordinated), and shall be paid out of, any and all distributions, dividends,
monies, securities and other properties that the Holders of the Securities may
be entitled to receive in any proceeding whether in liquidation or under any
plan or reorganization, arrangement or otherwise. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Securityholder any plan or reorganization, arrangement,
adjustment or composition affecting the
16
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
SECTION 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.7;
Second: to Securityholders 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 Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders.
SECTION 6.11 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 a 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.
ARTICLE 7
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed,
subject to the terms hereof.
SECTION 7.1 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, of
which the Trustee has or is deemed to have notice pursuant to Section 6.1
hereof, the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise, as
a prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs.
(b) Except during the continuance of an Event of Default:
17
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no covenants or
obligations shall be implied in or read into this Indenture which are
adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture, but need not verify the accuracy of the contents thereof.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph
(b) of this section.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not 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 Section 6.5.
(d) Whether or not therein expressly provided, every provision
of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability except as otherwise provided
in this Indenture. 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.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.2 RIGHTS OF TRUSTEE.
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both, which shall
conform to Section 11.5. The
18
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel. The
Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not 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 conferred upon it by this Indenture, nor for any action
permitted to be taken or omitted hereunder by any Agent.
(e) Unless otherwise specifically provided in the Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney.
(g) A director, officer, employee or Affiliate of the Trustee
shall be protected by the provisions hereof, including, without limitation, the
immunities and indemnities afforded herein, to the same extent as the Trustee
and shall not have any liability hereunder.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
7.10 and 7.11.
SECTION 7.4 TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be accountable for
the Company's use of the proceeds from the Securities or any money paid to the
Company or upon the Company's direction under any provision hereof, it shall not
be responsible for the use or application of any money received by any Paying
Agent other than the Trustee, and it shall not be responsible for any statement
of the Company in the Indenture or any statement in the Securities other than
its certificate of authentication.
19
SECTION 7.5 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to Securityholders a notice
of the Default or Event of Default within 90 days after such Default or Event of
Default in payment of principal of, or interest on, any Security the Trustee may
withhold the notice if and so long as the board of directors, executive
committee or a trust committee of directors and/or reasonable offices, of the
Trustee in good faith determine that withholding the notice is in the interest
of the Securityholder.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS.
If required under the provisions of TIA Section 313(a), within 60
days after each December 31st commencing with the December 31st following the
date of this Indenture, the Trustee shall mail to Securityholders a brief report
dated as of such reporting date that complies with TIA Section 313(a). The
Trustee also shall comply with TIA Section 313(b)(2). The Trustee shall also
transmit by mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange on which the
Securities are listed. The Company shall notify the Trustee when the Securities
are listed on any stock exchange.
SECTION 7.7 COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable disbursements, advances
and expenses incurred by it. Such expenses may include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any loss,
liability or expense incurred by it except as set forth in the next paragraph.
The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. The Company shall defend the claim with counsel approved by the
Trustee (which approval shall not be unreasonably withheld) and the Trustee
shall cooperate in such defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld.
The Company need not reimburse any expense or indemnify against
any expense or indemnity against any loss or liability incurred by the Trustee
through negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities. Such obligation shall survive the
satisfaction and discharge of the Indenture.
20
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's obligations under this Section 7.7 and any lien
arising hereunder shall survive the resignation or removal of the Trustee, the
discharge of the Indenture and any rejection or termination of this Indenture
under any Bankruptcy Law.
SECTION 7.8 REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign by so notifying the Company. The Holders
of a majority in principal amount of the then outstanding Securities may remove
the Trustee by so notifying the Trustee and the Company. The Company may remove
the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or
an order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a custodian or Receiver takes charge of the Trustee or
its property;
(4) the Trustee becomes incapable of acting; or
(5) in the judgment of the Company, comparable services are
available from another entity qualifying under Section 7.10 at a materially
lower cost to the Company.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the then outstanding Securities
may appoint a successor Trustee to replace the successor Trustee appointed by
the Company.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the then outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
21
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.7. Notwithstanding replacement of the Trustee
pursuant to this Section 7.8, the Company's obligations under Section 7.7 hereof
shall continue for the benefit of the retiring Trustee with respect to expenses
and liabilities incurred by it prior to such replacement.
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation, without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee. In case any securities
shall have been authenticated, but not delivered, by the Trustee then in office,
any such successor may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1). The Trustee shall always have a combined
capital and surplus of at least $100,000,000 as set forth in its most recent
published annual report of condition. The Trustee is subject to TIA Section
310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
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
therein.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1 TERMINATION OF COMPANY'S OBLIGATIONS.
This Indenture shall cease to be of further effect (except that
the Company's obligations under Sections 7.7 and 8.3 and the Trustee's and
Paying Agent's obligations under Section 8.3 shall survive) when all outstanding
Securities theretofore authenticated and issued have been delivered (other than
destroyed, lost or stolen Securities which have not been replaced or paid) to
the Trustee for cancellation and the Company has paid all sums payable
hereunder.
22
In addition, the Company may terminate all of its obligations under this
Indenture, (except the Company's obligations under Sections 7.7, 8.3 and as
noted below) if:
(1) the Securities mature within one year or all of them
are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption; and
(2) the Company irrevocably deposits in trust with the
Trustee, or, at the option of the Trustee, with a trustee satisfactory
to the Trustee and the Company under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, who
otherwise would be qualified to act as Trustee under this Indenture
("Other Trustee") money or U.S. Government Obligations sufficient to
pay principal and interest on the Securities to maturity or
redemption, as the case may be, and to pay all other sums payable by
it hereunder, and delivers to the Trustee an Officers' Certificate
stating that all conditions precedent to satisfaction and discharge of
this Indenture have been complied with, and an Opinion of Counsel to
the same effect. The Company may make the deposit only during the
one-year period.
PROVIDED, HOWEVER, that the Company's obligations in Sections 2.3, 2.4, 2.5,
2.6, 2.7, 4.1, 7.7, 7.8, 8.3 and 8.4 shall survive until the Securities are no
longer outstanding. Thereafter, only the Company's obligations in Sections 7.7
and 8.3 and the Trustee's and Paying Agent's obligations under Section 8.3 shall
survive.
After such irrevocable deposit made pursuant to this Section 8.1,
the Trustee upon request shall acknowledge in writing the discharge of the
Company's obligations under this Indenture except for those surviving
obligations specified above.
"U.S. Government Obligations" means direct obligations of the
United States of America for the payment of which the full faith and credit of
the United States of America is pledged. In order to have money available on a
payment date to pay principal of or interest on the Securities, the U.S.
Government Obligations shall be payable as to principal or interest on or before
such payment date in such amounts as will provide the necessary money. U.S.
Government Obligations shall not be callable at the issuer's option.
SECTION 8.2 APPLICATION OF TRUST MONEY.
The Trustee or Other Trustee shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to section 8.1. It shall
apply the deposited money and the money from U.S. Government Obligations through
the Paying Agent and in accordance with this Indenture to the payment of
principal of and interest on the Securities.
SECTION 8.3 REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall promptly pay to the
Company upon written request any excess money or securities held by them at any
time.
23
The Trustee and the Paying Agent shall pay to the Company upon
written request any money held by them for the payment of principal, premium, if
any, or interest that remains unclaimed for two years and six months after the
date upon which such payment shall have become due; provided, however, that the
Company shall have first caused notice of such payment to be mailed to each
Securityholder entitled thereto no less than 30 days prior to such payment.
After payment to the Company, Securityholders entitled to the money must look to
the Company for payment as general creditors unless an applicable abandoned
property law designates another Person, and all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
SECTION 8.4 REINSTATEMENT.
If the Trustee, Paying Agent or Other Trustee is unable to apply
any money or U.S. Government Obligations in accordance with Section 8.2 by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.1 until such
time as the Trustee, Paying Agent, or Other Trustee is permitted to apply all
such money or U.S. Government Obligations in accordance with Section 8.2;
provided, however, that if the Company makes any payment of interest on or
principal of any security following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such securities to
receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
SECTION 9.1 WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee may amend this Indenture or the
Securities without the consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency or make
any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the
provisions of this Indenture, provided such action pursuant to this
clause shall not adversely affect the interests of any Holder in any
respect;
(2) to comply with any requirements of the SEC in
connection with the qualification of this Indenture under the TIA;
(3) to add to the covenants of the Company for the benefit
of the Holders, or to surrender any right or power herein conferred
upon the Company;
(4) to provide for guarantors of the Securities;
24
(5) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the obligations
of the Company, herein and in the Securities or in accordance with
Article 5;
(6) to provide for uncertificated Securities in addition to
certificated Securities; or
(7) to make any change that does not adversely affect the
legal rights hereunder of any Securityholder.
The Trustee is hereby authorized, upon receipt by the Trustee of
the documentation described in Section 9.6, to join with the Company in the
execution of any Supplemental Indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations
which may be therein contained, but the Trustee shall not be obligated to enter
into such supplemental indenture which in its reasonable opinion affects its own
rights, duties or immunities under this Indenture or otherwise.
SECTION 9.2 WITH CONSENT OF HOLDERS.
Subject to Section 6.7, the Company and the Trustee may amend
this Indenture or the Securities with the written consent of the Holders of at
least a majority in principal amount of the then outstanding Securities.
Subject to Sections 6.4 and 6.7, the Holders of a majority in principal amount
of the then outstanding Securities may also waive compliance in a particular
instance by the Company with any provision of this Indenture or the securities.
However, without the consent of each Securityholder affected, an
amendment or waiver under this Section may not:
(1) reduce the amount of Securities whose Holders must
consent to an amendment or waiver;
(2) reduce the rate of or change the time for payment of
interest, including default interest, on any Security;
(3) reduce the principal of or change the fixed maturity of
any Security or alter the redemption provisions with respect thereto;
(4) make any Security payable in money other than that
stated in the Security;
(5) make any change in Section 6.4, 6.7 or 9.2 (this
sentence);
(6) waive a default in the payment of the principal of, or
interest on, any Security; or
25
(7) release any Collateral except by sales and as otherwise
permitted in the Security Documents.
To secure a consent of the Holders under this Section it shall
not be necessary for the Holders to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall mail to Securityholders a notice briefly
describing the amendment, supplement or waiver. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity or any such supplemental indenture or waiver.
After an amendment, supplement or waiver under this Section 9.2
or Section 9.4 becomes effective, it shall bind each Holder.
SECTION 9.3 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment, waiver or supplement to this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his Security or portion of a Security by written notice to the
Company or Person designated by the Company as the Person to whom contents
should be sent if such revocation is received by the Company or such person
before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Securities have
consented to the amendment supplement or waiver.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver which record date shall be the date so fixed by the Company
notwithstanding the provisions of the TIA. If a record date is fixed, then
notwithstanding the provisions of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies)
and only those Persons, shall be entitled to consent to such amendment or waiver
or to revoke any consent previously given, whether or not such Persons continue
to be Holders after such record date. No consent shall be valid or effective
for more than 90 days after such record date.
26
SECTION 9.5 NOTATION ON OR EXCHANGE OF SECURITIES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Security thereafter authenticated. The Company in
exchange for all Securities may issue and the Trustee shall authenticate new
Securities that reflect the amendment or waiver.
SECTION 9.6 TRUSTEE PROTECTED.
The Trustee shall execute any amendment, waiver or supplemental
authorized pursuant to this Article provided however that the Trustee may, but
shall not be obligated to execute any such amendment, waiver or supplement which
affects the Trustee's own rights, duties, liabilities or immunities under this
Indenture, the Trustee shall be entitled to receive and shall be fully protected
in relying upon, an officers' Certificate and an Opinion of Counsel as
conclusive evidence that such amendment, waiver or supplemental is authorized or
permitted by this Indenture, that it is not inconsistent herewith, and that it
will be valid and binding upon the Company in accordance with its terms.
ARTICLE 10
INTENTIONALLY LEFT BLANK
ARTICLE 11
MISCELLANEOUS
SECTION 11.1 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.
SECTION 11.2 NOTICES.
Any notice or other communication to the Company, Paying Agent,
Registrar, or the Trustee required or permitted hereunder shall be in writing,
and shall be sufficiently given if, made by hand delivery, by telex, by
telecopier or registered or certified mail, postage prepaid, return receipt
requested addressed as follows;
27
if to the Company:
Sentinel Financing, Ltd., L.P.
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
if to the Trustee:
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
----------------------------------
Any party by notice to each other party may designate additional
or different addresses as shall be furnished in writing by such party. Any
notice or communication to any party shall be deemed to have been given or made
as of the date so delivered, if personally delivered; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and five Business Days
after mailing if sent by registered or certified mail, postage prepaid (except
that a notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication mailed to a Securityholder shall be
mailed to him or her by first-class mail or other equivalent means at his or her
address as it appears on the registration books of the Registrar and shall be
sufficient given to him or her if so mailed within the time prescribed. Any
notice or communication shall also be mailed to any Person described in TIA
Section 313(c) to the extent required by the TIA.
Failure to mail a notice or communication to a Securityholder or
any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 11.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
28
SECTION 11.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate (which shall include the statements
set forth in section 11.5) 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 met; and
(b) an Opinion of Counsel (which shall include the statements
set forth in Section 11.5) stating that, in the opinion of such counsel, all
such conditions precedent have been met.
SECTION 11.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA 14(a)(4) shall comply with the provisions of TIA
Section 314(e) and shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) 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;
(3) 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 met; and
(4) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been met; provided,
however, that with respect to matters of fact and opinion of counsel
may rely on an Officers' Certificate.
SECTION 11.6 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a
meeting of Securityholders. The Registrar or Paying Agent may make reasonable
rules and set reasonable requirements for its functions.
SECTION 11.7 NO RECOURSE AGAINST OTHERS.
A director, officer, employee, stockholder, limited partner, as
such, of the Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all such liability.
29
SECTION 11.8 DUPLICATE ORIGINALS.
This Indenture may be executed in any number of counterparts and
by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
The Parties may sign any number of copies of this Indenture. One
signed copy is enough to prove this Indenture.
SECTION 11.9 GOVERNING LAW.
The internal laws of the State of Florida shall govern and be
used to construe this Indenture and the Securities, without regard to the
conflicts of laws provisions thereof.
SECTION 11.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 11.11 SUCCESSORS.
All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 11.12 SEVERABILITY.
In case any provision in this Indenture or in the Securities
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 11.13 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, and Headings of the Articles and Sections
of this Indenture have been inserted for convenience of reference only, are not
to be considered a part hereof, and shall in no way modify or restrict any of
the terms or provisions hereof.
30
SIGNATURES
Dated: as of_____________, 1997 SENTINEL FINANCING, LTD., L.P.
(SEAL) By:__________________________________
Its:_________________________________
Attest:
__________________________________
Dated: as of ____________________
[______________________], as Trustee
(SEAL)
By:_____________________________________
Its: Vice President
Attest:
__________________________________
Trust Officer
31
EXHIBIT A
(Face of Security)
No. $
SENTINEL FINANCING, LTD., L.P.
promises to pay to
or registered assigns,
the principal sum of Dollars on _________
12% SECURED FIXED RATE NOTES
DUE__________, 2002
Interest payment Dates:
Record Dates:
Dated:
__________________________________________________
By
________________________________________________
By _______________________________________________
(SEAL)
Authenticated to be one of the
Notes described in the Indenture
referred to herein:
By __________________________________
Authorized Signature
32
(Back of Security)
12% Secured Fixed Rate Notes due_____________, 2002
1. INTEREST. SENTINEL FINANCING, LTD., L.P., a Florida limited
partnership (the "Company"), promises to pay interest on the principal amount of
this Security at a rate of 12% per annum from the date of issuance, payable
monthly on the 15th day of each month commencing on ____________, 1997, to the
Persons in whose names such Notes are registered at the close of business on the
Record Date next preceding the Interest Payment Date. Interest will be computed
on the basis of a 360-day year consisting of twelve 30-day months. To the
extent lawful, any installment of interest on the Notes which is not paid when
due shall accrue interest at the lesser of 18% compounded quarterly, or the
highest lawful rate of interest from the due date until paid.
2. METHOD OF PAYMENT. Principal of, and interest on the
Securities will be payable, at the Company's office. The Company will pay
principal and interest in money of the United States that is legal tender for
payment of public and private debts. At the option of the Company, payment of
principal and interest may be made by check mailed to the Holder at the address
set forth in the registry books of the Company.
3. PAYING AGENT AND REGISTRAR. Initially, the Trustee will act
as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-registrar without notice to any Securityholder. The Company or
any Subsidiaries of the Company may act in any such capacity.
4. INDENTURE. The Company issued the Securities under an
Indenture dated as of____________, 1997 (the "Indenture") between the Company
and the Trustee. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect on the
date of the Indenture. The Securities are subject to, and qualified by, all
such terms, certain of which are summarized herein, and Securityholders are
referred to the Indenture and such Act for a statement of such terms. The
Securities are secured obligations of the Company limited to $15,000,000 in
aggregate principal amount.
5. OPTIONAL REDEMPTION. All or any part of the Securities may
be redeemed by the Company, in whole or part, at any time or some of them from
time to time, upon not less than 30 or more than 60 days' notice at a redemption
price equal to 100% of the principal amount plus accrued interest to the
Redemption Date.
6. NOTICE OF REDEMPTION. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the Redemption Date to each
holder of Securities to be redeemed at his registered address. Securities in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. On and after the Redemption Date interest ceases to accrue
on Securities or portions of them called for redemption. In the event
33
of a partial redemption of the Notes, the Notes will be redeemed in whole or
part will be selected on a pro rata basis or in such other manner as the Company
deems appropriate and fair.
If this Security is redeemed subsequent to a record date
with respect to any interest payment date specified above and on or prior to
such interest payment date, then any accrued interest will be paid to the Person
in whose name this Security is registered at the close of business on such
record date.
7. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Securities may be registered and
Securities may be exchanged as provided in the Indenture. The Registrar may
require a holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not exchange or register the transfer of any
Security or portion of a Security selected for redemption. Also, it need not
exchange or register the transfer of any Securities for a period of 15 days
before a selection of Securities to be redeemed.
8. PERSONS DEEMED OWNERS. The registered holder of a Security
may be treated as its owner for all purposes.
9. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the
Indenture or the Securities may be amended with the consent of the holders of at
least a majority in principal amount of the then outstanding Securities.
Without the consent of any Securityholder, the Indenture or the securities may
be amended to cure any ambiguity, defect or inconsistency, to comply with the
requirements of the SEC in connection with the qualification of the Indenture
under the TIA, to add covenants of the Company for the benefit of the Holders,
to provide guarantors of the Securities, to evidence succession of another
Person to the Company, to provide for uncertificated Securities in addition to
certificated Securities or to make any change that does not adversely affect the
rights of any Securityholder.
10. DEFAULTS AND REMEDIES. An Event of Default occurs if: the
Company fails to pay any payment of interest on any Security when the same
becomes due and payable; the Company receives written notice from payment of the
principal of any Security when the same becomes due and payable at maturity,
upon redemption or otherwise; and certain events of bankruptcy or insolvency. If
an Event of Default occurs and is continuing, the Trustee or the holders of at
least a majority in principal amount of the then outstanding Securities may
declare all the Securities to be due and payable immediately, except that in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency all outstanding securities become due and payable immediately without
further action or notice. Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, holders of a majority in principal amount of the
then outstanding Securities may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Securityholders notice of any
continuing default (except a default in payment of principal or interest) if it
determines that withholding notice is in their interests. The Trustee is only
deemed
34
to have knowledge of a default or Event of Default under certain circumstances
set forth in the Indenture. The Company must furnish an annual compliance
certificate to the Trustee.
11. SECURITY. The due and punctual payment of interest and
principal of the Securities when and as the same shall be due and payable,
whether at maturity, by acceleration, or otherwise, and the interest on the
overdue principal of the Securities and payment and performance of all other
obligations of the Company to Holders or the Trustee under the Indenture and the
Securities shall be secured as provided in the Security Documents.
12. NO RECOURSE AGAINST OTHERS. A director, officer, employee
or stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
13. AUTHENTICATION. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
14. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Securityholder or an assignee, such as: TEN COM (= tenants in
common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
15. INDENTURE CONTROLS. Nothing contained herein shall in any
way be construed to impose any duties upon the Trustee beyond those contained in
the Indenture. All immunities, indemnities, exceptions from liability and other
provisions of the Indenture insofar as they relate to the Trustee shall apply to
this Security and are incorporated herein.
The Company will furnish to any Securityholder upon written
request and without charge a copy of the Indenture, which has in it the text of
this Security in larger type. Request may be made to:
SENTINEL FINANCING, LTD., L.P.
000 Xxxxx Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxxxx, Xxxxxxx 00000
35
ASSIGNMENT FORM
To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
____________________________________________ agent to transfer this Security on
the books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date: Your Signature:
--------------------- -----------------------------------
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee.
36
