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EXHIBIT 4.3
INDENTURE OF TRUST
THIS INDENTURE OF TRUST dated as of the ____ day of _____________ , 1997,
by and between Sterling Financial Services of Florida, Inc., a Florida
corporation (the "Company"), and Xxxxxxx X. Xxxxxx, as Trustee (the "Trustee").
WITNESSETH:
WHEREAS, the Company has duly authorized the offer and sale of 9,900
Promissory Notes (the "Notes") due on or before June 30, 2002, a specimen copy
of which is attached hereto as Exhibit "A," in the principal amount of One
Thousand Dollars ($1,000) per Note, which Notes are secured by certain assets as
described in the Prospectus dated ________________, 1997 and a Security
Agreement and Collateral Assignment with respect to the assets described on
Exhibit B hereto (the foregoing Notes, Security Agreement and Collateral
Assignment collectively referred to herein as the "Security Documents"); and
WHEREAS, the Company has determined that it is in the best interests of
the Company and the holders of the Notes to enter into this Indenture of Trust
(the "Indenture").
NOW, THEREFORE, for valuable consideration, the receipt, adequacy and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Recitals. The above recitals are those of the Company and are
true and correct and are incorporated herein by reference. The Trustee
takes no responsibility for such recitals.
2. Acceptance of Trust. The Trustee hereby accepts title in and to
the Notes in trust for each and every holder of the Notes under the
terms and conditions contained herein.
3. Duties of Trustee.
a. The Trustee undertakes to perform such duties and only such
duties as are specifically set forth in the Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee. The
specific duties of the Trustee are as follows:
(1) To hold as Custodian and Trustee the Security Documents
as described in the Prospectus and related Collateral for the benefit of the
holders of the Notes, releasing the Collateral as set forth in the Prospectus
and Security Agreement. In connection with any such release of Collateral, the
Trustee shall execute a release of the security interest on the Released
Collateral in recordable form which the Company may record in the Public
Records;
(2) To perform its obligations under paragraph 6 hereof in the
Event of Default in the payment of principal and interest on the Notes; and
(3) To execute and deliver to the Company the Satisfactions
of Security Documents provided for in this paragraph and in paragraph 4 hereof.
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b. In the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely on the certificates and affidavit delivered to the
Trustee by the Company under the terms of paragraph 4 hereof. The Trustee shall
not be liable with respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the holders of not less than a
majority in principal amount of the Notes relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this Indenture.
c. No provision of this Indenture shall require the Trustee to
expend or risk his own funds or otherwise incur personal financial liability in
the performance of any of his duties hereunder or in the exercising of any of
his rights or powers, if there is a reasonable ground for believing that the
repayment of such funds or liability is not reasonably assured to him.
d. The Trustee may rely and shall be protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, Note, or other paper or document believed by
him to be genuine and to have been signed or presented by the proper party or
parties.
e. The Trustee may consult with his counsel, and any opinion of
counsel shall be full and complete authorization and protection with respect to
any action taken, suffered, or omitted by it hereunder in good faith and in
accordance with such opinion of counsel.
f. The Trustee shall be under no duty or obligation to exercise any
of the rights or powers vested in him by this Indenture at the request, order,
or direction of any of the holders of the Notes, pursuant to this Indenture,
unless such holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
thereon or thereby. Nothing herein contained shall, however, relieve the Trustee
of the obligations, upon the occurrence of an Event of Default (which has not
been cured or waived) to give notice to the holders of the Notes as provided for
in paragraph 6(g) hereof.
g. The Trustee shall not be liable for any action taken, suffered
or omitted by him in good faith and believed by him to be authorized or within
the discretion or rights or powers conferred upon him by this Indenture.
h. 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, consent, order, approval,
appraisal, Note, or other paper or document, unless requested to do so by not
less than a majority in the aggregate principal amount of the Notes than
outstanding; provided, that if the payment in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee, the
Trustee may require payment or assurance and indemnity against such expenses
or liabilities as a condition to such proceedings.
i. The Trustee may execute any of the Trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys, and the Trustee shall not be
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responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care.
j. The Trustee makes no representations as to the validity or
sufficiency of this Indenture, the Notes or the Lien.
4. Covenants of the Company.
a. The Company covenants to duly and punctually pay all
principal and accrued interest on the Notes as due under the terms of
the Notes. Simultaneously with the mailing of monthly interest payments, the
Company shall deliver to the Trustee a list of its checks payable to the Note
Holders together with its affidavit as evidence of the making of such payments.
The same procedure shall be followed with respect to the payment of the
principal on the Notes. Upon the receipt by the Trustee of copies of cancelled
checks drawn on the Company's account payable to the Note Holders in the amount
of less than the total principal due on any of the Notes and an affidavit of the
Company that any such Notes have been so paid, the Trustee shall execute and
deliver to the Company a partial satisfaction of the Security Documents in
recordable form which the Company may record in the Public Records. Upon such
delivery to the Trustee of copies of cancelled checks drawn on the Company
account payable to the holders of the Notes then outstanding in the aggregate
amount of the outstanding principal due on all of the Notes then outstanding
accompanied by an affidavit of the Company that all Notes have been paid in full
(together with all accrued interest), the Trustee shall deliver to the Company a
full satisfaction of the Security Documents and the Trustee and the Company
shall be relieved of all further obligations hereunder.
b. The Company shall also keep an accurate list of the names and
addresses of all Note Holders and shall deliver a copy of same to the Trustee
and to any Note Holder upon request.
5. Events of Default. Subject to the following limitations, an
Event of Default occurs if:
a. the Company receives written notice from a Trustee of a
default in the payment of interest on any Note when the same becomes due
and payable and the default continues for a period of 30 days after receipt of
such notice;
b. the Company receives written notice from a Trustee of a
default in the payment of the principal of any Note when the same
becomes due and payable at maturity or otherwise after receipt of such notice;
c. the Company fails to comply with any of its other agreements
in the Notes, this Agreement or the Security Agreement and the default
continues for the period and after the notice specified below;
d. the Company pursuant to or within the meaning of any
Bankruptcy Law:
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(1) commences a voluntary case,
(2) consents to the entry of an order for relief against
it in any involuntary case,
(3) consents to the appointment of a Receiver of it or
for any substantial part of its property,
(4) makes a general assignment for the benefit of its
creditors, or
(5) fails generally to pay its debts as they become due;
or
e. a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(1) is for relief against the Company in an involuntary
case,
(2) appoints a Receiver of the Company or for any
substantial part of its property, or
(3) orders the liquidation of the Company, and the order
or decree remains unstayed and in effect for 90 days
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx 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.
A default hereunder is not an Event of Default until the Trustee
holding at least a majority in principal amount of the Notes notifies
the Company of the default and the Company does not cure the default within 90
days after receipt of the notice. The notice must specify the default, demand
that it be remedied, and state that the notice is a "Notice of Default."
6. Remedies.
a. If an Event of Default occurs and is continuing either:
(a) the Trustee, by written notice to the Company or (b) the holders of
at least 25% in principal amount of the Notes, by written notice to the Company
and the Trustee, may declare the principal of and accrued interest on all the
Notes to be due and payable immediately. After a declaration such principal and
interest shall be due and payable immediately. An acceleration and its
consequences shall be rescinded if all existing Events of Default have been
cured or waived prior to the entry of a judgment against the Company and if the
rescission would not conflict with any judgment or decree.
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Subject to the provisions of the preceding paragraph, if an
Event of Default occurs and is continuing, the Trustee may pursue any available
remedy by proceeding at law or in equity to collect the payment of principal and
interest on the Notes or to enforce the performance of any provision of the
Notes or this Agreement.
Subject to the foregoing, the holders of a majority in
principal amount of the Notes by notice to the Trustee may waive an existing
Default or Event of Default and its consequences. When a Default or Event of
Default is waived, it is cured and stops continuing and no rights and remedies
thereon may continue to be enforced.
Notwithstanding anything to the contrary in this Agreement,
the Trustee is required to proceed against and liquidate all Collateral before
looking to any other assets of the Company.
b. At any time after an election under paragraph 6(a) to declare
the Notes due and payable, the Trustee may institute any action or proceeding at
law or in equity (including the foreclosure of the Security Documents) for the
collection of sums due and unpaid and may prosecute any such action or
proceeding to judgment or final decree, and may enforce such judgment or final
decree against the Company.
c. All rights of action under this Indenture or under any of the
Notes may be enforced by the Trustee without the possession of any of the Notes,
or the production thereof at any trial or other proceeding relative thereto, and
any such suit or proceeding instituted by the Trustee shall be brought in its
own name as Trustee of an express trust, and any recovery of judgment shall be
for the ratable benefit of the holders of the Notes.
d. Any and all monies collected by the Trustee pursuant to
this paragraph 6 shall be applied in the following order:
(1) To the payment of all costs and expenses of collection
and all Trustee's fees.
(2) To the payment of interest on the Notes, such payments
to be made ratably to the persons entitled thereto.
(3) To the payment of the outstanding principal balance on
the Notes, such payments to be made ratably to the persons entitled
thereto.
(4) The remainder, if any, shall be paid to the Company, its
successors and assigns or to any other person under an order of court.
e. All powers and remedies given by this paragraph 6 to the
Trustee or to the Note Holders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any other powers and remedies available
to the Trustee or the holders of the Notes by judicial proceedings or otherwise,
to enforce the performance or observance of the covenants and
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agreements contained in this Indenture, and no delay or omission of the
Trustee or of any holder of any of the Notes to exercise any right or power
accruing upon any default occurring and continuing as aforesaid, shall impair
any such right or power, or shall be construed to be a waiver of any such
default or an acquiescence therein.
f. The holders of a majority in aggregate principal amount of the
Notes at the time outstanding shall have the right to direct the time, method
and pace of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee; provided, however,
that the Trustee shall have the right to decline to follow any such direction if
the Trustee, having been advised by counsel, shall determine that the action so
directed may not be lawfully taken if it is determined that the action so
directed would be unduly prejudicial to the Note holders not taking part in such
direction.
g. The Trustee shall, within thirty (30) days after he receives
notice of the occurrence of an Event of Default, mail to the Note Holders, as
the names and addresses of such holders appear upon the books of the Company,
notice of each Event of Default hereunder known to the Trustee, unless such
Event of Default shall have been cured before the giving of such notice.
7. Payment of Trustee. The Trustee agrees to provide the services as
Trustee hereunder for a fee of $500 per year plus reimbursement of all actual
expenses. In addition, upon the occurrence of an Event of Default under this
Agreement or the Security Documents, the Trustee shall receive a fee of $75 per
hour for time incurred in rendering his duties hereunder.
8. Indemnification. The Company covenants and agrees to indemnify the
Trustee for, and to hold him harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Trustee, arising out
of or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending himself against any claim of
liability relating thereto.
9. Resignation and Removal of Trustee.
a. The resignation and removal of Trustee shall be governed by
the provisions of this paragraph 9.
b. The Trustee, or any trustee or trustees hereafter appointed may
at any time resign by giving written notice of such resignation to the
Company and by mailing notice thereof to the holders of the Notes at their
addresses as they shall appear on the books of the Company. Upon receiving such
notice of resignation the Company shall promptly appoint a successor trustee. If
no successor trustee shall have been so appointed and have accepted appointment
within thirty (30) days after the mailing of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Note Holder may, on behalf of himself
and all others similarly situated, petition any such court for the appointment
of a successor trustee. Such court may thereupon after such notice, if any, as
it may deem proper and prescribe, appoint a successor trustee.
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c. In case at any time the Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the
Trustee or of his property shall be appointed, or any public officer shall take
change or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, the Company may remove the
Trustee and appoint a successor trustee or, may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee. Such Court
may thereupon after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
d. The holders of a majority in aggregate principal amount of the
Notes at the time outstanding may at any time remove the Trustee and appoint a
successor trustee.
e. Any resignation or any removal of the Trustee and any
appointment of a successor trustee pursuant to any of the provisions of this
section shall become effective upon acceptance of appointment by the successor
trustee as provided in paragraph 9 (e) hereof.
f. Any successor trustee appointed under this paragraph 9, shall
execute, acknowledge and deliver to the Company and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, (except for
an assignment of the Security Documents executed in recordable form) shall
become vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as Trustee
herein; but, nevertheless, on the written request of the Company or of the
successor trustee, the Trustee ceasing to act shall, upon payment of any amount
then due it hereunder. execute and deliver an instrument transferring to such
successor trustee all the rights and powers of the Trustee so ceasing to act.
Upon request of any such successor trustee, the Company shall execute any and
all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee and certainly vesting in and confirming to
such successor trustee all such rights and powers. Any Trustee ceasing to act
shall, nevertheless, retain a lien upon the property described in Exhibit "B"
hereto to secure any amounts then due it hereunder.
Upon acceptance of appointment by a successor trustee, the
Company shall mail notice of the succession of such trustee hereunder to the
holders of Notes at their addresses as they shall appear on the registration
books of the Company. If the Company fails to mail such notice within ten (10)
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Company.
10. Concerning the Note Holders. Whenever in this Indenture it is
provided that the holders of a specified percentage in aggregate
principal amount of the Notes may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the taking of
any other action), the fact that at the time of taking any such action the
holders of such specified percentage have joined therein may be evidenced by any
instrument or any
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number of instruments of similar tenor executed by Note Holders in
person or by agent or proxy appointed in writing.
11. Miscellaneous Provisions.
a. All of the covenants, stipulations, promises and agreements
contained herein by or on behalf of the Company shall bind its successors and
assigns, whether so expressed or not.
b. Nothing in this Indenture or in the Notes, express or implied,
shall give or be construed to give any person, firm or corporation, other than
the parties hereto and the Note Holders, any legal or equitable right remedy or
claim under or in respect of the Indenture, or any covenant, condition or
provision herein contained and all its covenants, conditions and provisions
shall be for the sole benefit of the parties hereto and of the Note Holders.
c. Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the holders of
the Notes on the Company shall be deemed to have been sufficiently given or
served, for all purposes, if given or served on the Company at the address filed
by the Company with the Trustee. Any notice, direction, request or demand by any
Note Holder to or on the Trustee shall be deemed to have been sufficiently given
or made, for all purposes, if given or made at the post office address of the
Trustee.
d. This Indenture and each Note shall be deemed to be a contract
made under the laws of the State of Florida, and for all purposes shall be
construed in accordance with the laws of such state.
IN WITNESS WHEREOF, the parties have signed this agreement as of the day
and year first above written.
STERLING FINANCIAL SERVICES OF
FLORIDA - I, INC., a Florida corporation
By:______________________________________
Xxxxxxx X. Xxxxxx, President
_________________________________________
Xxxxxxx X. Xxxxxx, Trustee
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