exv4w3



 





EXHIBIT 4.3




FORM OF INDENTURE TO BE ENTERED INTO BETWEEN




THE COMPANY AND A TRUSTEE TO BE NAMED




SILVERLEAF RESORTS, INC.




INDENTURE




Dated as of ___, 200___




[Name of Trustee]




Trustee




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE
	 	 	1	 
	Section 1.1. Definitions
	 	 	1	 
	Section 1.2. Other Definitions
	 	 	4	 
	Section 1.3. Incorporation by Reference of Trust Indenture Act
	 	 	4	 
	Section 1.4. Rules of Construction
	 	 	5	 
	 
	 	 	 	 
	ARTICLE II. THE SECURITIES
	 	 	5	 
	Section 2.1. Issuable in Series
	 	 	5	 
	Section 2.2. Establishment of Terms of Series of Securities
	 	 	5	 
	Section 2.3. Execution and Authentication
	 	 	7	 
	Section 2.4. Registrar and Paying Agent
	 	 	8	 
	Section 2.5. Paying Agent to Hold Money in Trust
	 	 	8	 
	Section 2.6. Securityholder Lists
	 	 	8	 
	Section 2.7. Transfer and Exchange
	 	 	8	 
	Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities
	 	 	9	 
	Section 2.9. Outstanding Securities
	 	 	9	 
	Section 2.10. Treasury Securities
	 	 	10	 
	Section 2.11. Temporary Securities
	 	 	10	 
	Section 2.12. Cancellation
	 	 	10	 
	Section 2.13. Defaulted Interest
	 	 	10	 
	Section 2.14. Global Securities
	 	 	10	 
	Section 2.15. CUSIP Numbers
	 	 	11	 
	 
	 	 	 	 
	ARTICLE III. REDEMPTION
	 	 	11	 
	Section 3.1. Notice to Trustee
	 	 	11	 
	Section 3.2. Selection of Securities to be Redeemed
	 	 	12	 
	Section 3.3. Notice of Redemption
	 	 	12	 
	Section 3.4. Effect of Notice of Redemption
	 	 	12	 
	Section 3.5. Deposit of Redemption Price
	 	 	12	 
	Section 3.6. Securities Redeemed in Part
	 	 	13	 
	 
	 	 	 	 
	ARTICLE IV. COVENANTS
	 	 	13	 
	Section 4.1. Payment of Principal and Interest
	 	 	13	 
	Section 4.2. SEC Reports
	 	 	13	 
	Section 4.3. Compliance Certificate
	 	 	13	 
	Section 4.4. Stay, Extension and Usury Laws
	 	 	13	 
	Section 4.5. Corporate Existence
	 	 	13	 
	Section 4.6. Taxes
	 	 	14	 
	 
	ARTICLE V. SUCCESSORS
	 	 	14	 
	Section 5.1. When Company May Merge, Etc.
	 	 	14	 
	Section 5.2. Successor Corporation Substituted
	 	 	14	 
	 
	 	 	 	 
	ARTICLE VI. DEFAULTS AND REMEDIES
	 	 	14	 
	Section 6.1. Events of Default
	 	 	14	 
	Section 6.2. Acceleration of Maturity; Rescission and Annulment
	 	 	15	 
	Section 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee
	 	 	16	 
	Section 6.4. Trustee May File Proofs of Claim
	 	 	17	 
	Section 6.5. Trustee May Enforce Claims Without Possession of Securities
	 	 	17	 
	Section 6.6. Application of Money Collected
	 	 	17	 
	Section 6.7. Limitation on Suits
	 	 	18	 
	Section 6.8. Unconditional Right of Holders to Receive Principal and Interest
	 	 	18	 






i









 






	 	 	 	 	 
	 	 	Page	 
	Section 6.9. Restoration of Rights and Remedies
	 	 	18	 
	Section 6.10. Rights and Remedies Cumulative
	 	 	19	 
	Section 6.11. Delay or Omission Not Waiver
	 	 	19	 
	Section 6.12. Control by Holders
	 	 	19	 
	Section 6.13. Waiver of Past Defaults
	 	 	19	 
	Section 6.14. Undertaking for Costs
	 	 	19	 
	 
	 	 	 	 
	ARTICLE VII. TRUSTEE
	 	 	20	 
	Section 7.1. Duties of Trustee
	 	 	20	 
	Section 7.2. Rights of Trustee
	 	 	21	 
	Section 7.3. Individual Rights of Trustee
	 	 	21	 
	Section 7.4. Trustee’s Disclaimer
	 	 	21	 
	Section 7.5. Notice of Defaults
	 	 	21	 
	Section 7.6. Reports by Trustee to Holders
	 	 	22	 
	Section 7.7. Compensation and Indemnity
	 	 	22	 
	Section 7.8. Replacement of Trustee
	 	 	22	 
	Section 7.9. Successor Trustee by Merger, Etc.
	 	 	23	 
	Section 7.10. Eligibility; Disqualification
	 	 	23	 
	Section 7.11. Preferential Collection of Claims Against Company
	 	 	23	 
	 
	 	 	 	 
	ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE
	 	 	23	 
	Section 8.1. Satisfaction and Discharge of Indenture
	 	 	23	 
	Section 8.2. Application of Trust Funds; Indemnification
	 	 	24	 
	Section 8.3. Legal Defeasance of Securities of any Series
	 	 	25	 
	Section 8.4. Covenant Defeasance
	 	 	26	 
	Section 8.5. Repayment to Company
	 	 	27	 
	Section 8.6. Reinstatement
	 	 	27	 
	 
	 	 	 	 
	ARTICLE IX. AMENDMENTS AND WAIVERS
	 	 	27	 
	Section 9.1. Without Consent of Holders
	 	 	27	 
	Section 9.2. With Consent of Holders
	 	 	28	 
	Section 9.3. Limitations
	 	 	28	 
	Section 9.4. Compliance with Trust Indenture Act
	 	 	29	 
	Section 9.5. Revocation and Effect of Consents
	 	 	29	 
	Section 9.6. Notation on or Exchange of Securities
	 	 	29	 
	Section 9.7. Trustee Protected
	 	 	29	 
	 
	 	 	 	 
	ARTICLE X. MISCELLANEOUS
	 	 	29	 
	Section 10.1. Trust Indenture Act Controls
	 	 	29	 
	Section 10.2. Notices
	 	 	29	 
	Section 10.3. Communication by Holders with Other Holders
	 	 	30	 
	Section 10.4. Certificate and Opinion as to Conditions Precedent
	 	 	30	 
	Section 10.5. Statements Required in Certificate or Opinion
	 	 	30	 
	Section 10.6. Rules by Trustee and Agents
	 	 	31	 
	Section 10.7. Legal Holidays
	 	 	31	 
	Section 10.8. No Recourse Against Others
	 	 	31	 
	Section 10.9. Counterparts
	 	 	31	 
	Section 10.10. Governing Laws
	 	 	31	 
	Section 10.11. No Adverse Interpretation of Other Agreements
	 	 	31	 
	Section 10.12. Successors
	 	 	31	 
	Section 10.13. Severability
	 	 	31	 
	Section 10.14. Table of Contents, Headings, Etc.
	 	 	32	 
	Section 10.15. Securities in a Foreign Currency or in ECU
	 	 	32	 
	Section 10.16. Judgment Currency
	 	 	32	 
	 
	 	 	 	 
	ARTICLE XI. SINKING FUNDS
	 	 	33	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	Section 11.1. Applicability of Article
	 	 	33	 
	Section 11.2. Satisfaction of Sinking Fund Payments with Securities
	 	 	33	 
	Section 11.3. Redemption of Securities for Sinking Fund
	 	 	33	 






iii









 





SILVERLEAF RESORTS, INC.




Reconciliation and tie between Trust Indenture Act of 1939 and




Indenture, dated as of ___, 200_




	 	 	 	 	 
	Section 310(a)(1)
	 	 	 	7.10
	(a)(2)
	 	 	 	7.10
	(a)(3)
	 	 	 	Not Applicable
	(a)(4)
	 	 	 	Not Applicable
	(a)(5)
	 	 	 	7.10
	(b)
	 	 	 	7.10
	Section 311(a)
	 	 	 	7.11
	(b)
	 	 	 	7.11
	(c)
	 	 	 	Not Applicable
	Section 312(a)
	 	 	 	2.6
	(b)
	 	 	 	10.3
	(c)
	 	 	 	10.3
	Section 313(a)
	 	 	 	7.6
	(b)(1)
	 	 	 	7.6
	(b)(2)
	 	 	 	7.6
	(c)(1)
	 	 	 	7.6
	(d)
	 	 	 	7.6
	Section 314(a)
	 	 	 	4.2, 10.5
	(b)
	 	 	 	Not Applicable
	(c)(1)
	 	 	 	10.4
	(c)(2)
	 	 	 	10.4
	(c)(3)
	 	 	 	Not Applicable
	(d)
	 	 	 	Not Applicable
	(e)
	 	 	 	10.5
	(f)
	 	 	 	Not Applicable
	Section 315(a)
	 	 	 	7.1
	(b)
	 	 	 	7.5
	(c)
	 	 	 	7.1
	(d)
	 	 	 	7.1
	(e)
	 	 	 	6.14
	Section 316(a)
	 	 	 	2.10
	(a)(1)(A)
	 	 	 	6.12
	(a)(1)(B)
	 	 	 	6.13
	(b)
	 	 	 	6.8
	Section 317(a)(1)
	 	 	 	6.3
	(a)(2)
	 	 	 	6.4
	(b)
	 	 	 	2.5
	Section 318(a)
	 	 	 	10.1





Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of the
Indenture.




 









 





     Indenture dated as of      , 200                    between Silverleaf Resorts, Inc., a Texas corporation
(“Company”), and [Name of Trustee], a                                         (“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 Securities issued under this Indenture.



ARTICLE I.




DEFINITIONS AND INCORPORATION BY REFERENCE




     Section 1.1. Definitions.



     “Additional Amounts” means any additional amounts which are required hereby or by any
Security, under circumstances specified herein or therein, to be paid by the Company in respect of
certain taxes imposed on Holders specified therein and which are owing to such Holders.



     “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, Service Agent or authenticating agent.



     “Authorized Newspaper” means a newspaper in an official language of the country of publication
customarily published at least once a day for at least five days in each calendar week and of
general circulation in the place in connection with which the term is used. If it shall be
impractical to make any publication of any notice required hereby in an Authorized Newspaper, any
publication or other notice in lieu thereof that is made or given by the Trustee shall constitute a
sufficient publication of such notice.



     “Bearer” means anyone in possession from time to time of a Bearer Security.



     “Bearer Security” means any Security, including any interest coupon appertaining thereto, that
does not provide for the identification of the Holder thereof.



     “Board of Directors” means the Board of Directors of the Company or any duly authorized
committee thereof.



     “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been adopted by the Board of Directors or pursuant to
authorization by the Board of Directors and to be in full force and effect on the date of the
certificate and delivered to the Trustee.



     “Business Day” means, unless otherwise provided by Board Resolution, Officers’ Certificate or
supplemental indenture hereto for a particular Series, any day except a Saturday, Sunday or a legal
holiday in The City of New York or The City of San Francisco on which banking institutions are
authorized or required by law, regulation or executive order to close.



     “Company” means the party named as such above until a successor replaces it and thereafter
means the successor.



     “Company Order” means a written order signed in the name of the Company by two Officers, one
of whom must be the Company’s chief executive officer, chief financial officer or principal
accounting officer.



1









 





     “Company Request” means a written request signed in the name of the Company by its Chairman of
the Board, a President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.



     “Corporate Trust Office” means the office of the Trustee at which at any particular time its
corporate trust business shall be principally administered.



     “Debt” of any person as of any date means, without duplication, all indebtedness of such
person in respect of borrowed money, including all interest, fees and expenses owed in respect
thereto (whether or not the recourse of the lender is to the whole of the assets of such person or
only to a portion thereof), or evidenced by bonds, notes, debentures or similar instruments.



     “Default” means any event which is, or after notice or passage of time would be, an Event of
Default.



     “Depository” means, with respect to the Securities of any Series issuable or issued in whole
or in part in the form of one or more Global Securities, the person designated as Depository for
such Series by the Company, which Depository shall be a clearing agency registered under the
Exchange Act; and if at any time there is more than one such person, “Depository” as used with
respect to the Securities of any Series shall mean the Depository with respect to the Securities of
such Series.



     “Discount Security” means any Security that provides for an amount less than the stated
principal amount thereof to be due and payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.2.



     “Dollars” means the currency of The United States of America.



     “ECU” means the European Currency Unit as determined by the Commission of the European Union.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended.



     “Foreign Currency” means any currency or currency unit issued by a government other than the
government of The United States of America.



     “Foreign Government Obligations” means with respect to Securities of any Series that are
denominated in a Foreign Currency, (i) direct obligations of the government that issued or caused
to be issued such currency for the payment of which obligations its full faith and credit is
pledged or (ii) obligations of a person controlled or supervised by or acting as an agency or
instrumentality of such government the timely payment of which is unconditionally guaranteed as a
full faith and credit obligation by such government, which, in either case under clauses (i) or
(ii), are not callable or redeemable at the option of the issuer thereof.



     “Global Security” or “Global Securities” means a Security or Securities, as the case may be,
in the form established pursuant to Section 2.2 evidencing all or part of a Series of Securities,
issued to the Depository for such Series or its nominee, and registered in the name of such
Depository or nominee.



     “Holder” or “Securityholder” means a person in whose name a Security is registered or the
holder of a Bearer Security.



     “Indenture” means this Indenture as amended from time to time and shall include the form and
terms of particular Series of Securities established as contemplated hereunder.



     “Interest” with respect to any Discount Security which by its terms bears interest only after
Maturity, means interest payable after Maturity.



     “Maturity,” when used with respect to any Security or installment of principal thereof, means
the date on which the principal of such Security or such installment of principal becomes due and
payable as therein or herein



2









 







provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption,
notice of option to elect repayment or otherwise.



     “Officer” means the Chairman of the Board, the Chief Executive Officer, the President, any
Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary of
the Company.



     “Officers’ Certificate” means a certificate signed by two Officers, one of whom must be the
Company’s principal executive officer, principal financial officer or principal accounting officer.



     “Opinion of Counsel” means a written opinion of legal counsel who is acceptable to the
Trustee. The counsel may be an employee of or counsel to the Company.



     “Person” means any individual, corporation, partnership, joint venture, association, limited
liability company, joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.



     “Principal” of a Security means the principal of the Security plus, when appropriate, the
premium, if any, on, and any Additional Amounts in respect of, the Security.



     “Responsible Officer” means any officer of the Trustee in its Corporate Trust Office and also
means, with respect to a particular corporate trust matter, any other officer to whom any corporate
trust matter is referred because of his or her knowledge of and familiarity with a particular
subject.



     “SEC” means the Securities and Exchange Commission.



     “Securities” means the debentures, notes or other debt instruments of the Company of any
Series authenticated and delivered under this Indenture.



     “Series” or “Series of Securities” means each series of debentures, notes or other debt
instruments of the Company created pursuant to Sections 2.1 and 2.2 hereof.



     “Significant Subsidiary” means (i) any direct or indirect Subsidiary of the Company that would
be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act of 1933, as amended, as such regulation is in effect on the date
hereof, or (ii) any group of direct or indirect Subsidiaries of the Company that, taken together as
a group, would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act of 1933, as amended, as such regulation is in effect on
the date hereof.



     “Stated Maturity” when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable.



     “Subsidiary” of any specified person means any corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power for the election of directors
of such corporation (irrespective of whether or not at the time stock of any other class or classes
of such corporation shall have or might have voting power by reason of the happening of any
contingency) is at the time directly or indirectly owned by such person, or by one or more other
Subsidiaries, or by such person and one or more other Subsidiaries.



     “TIA” means the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) as in effect
on the date of this Indenture; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required by any such
amendment, the Trust Indenture Act as so amended.



     “Trustee” means the person named as the “Trustee” in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean or include each person who is then a Trustee
hereunder, and if at any time there is more than



3









 







one such person, “Trustee” as used with respect to the Securities of any Series shall mean the
Trustee with respect to Securities of that Series.



          “U.S. Government Obligations” means securities which are (i) direct obligations of The United
States of America for the payment of which its full faith and credit is pledged or (ii) obligations
of a person controlled or supervised by and acting as an agency or instrumentality of The United
States of America the payment of which is unconditionally guaranteed as a full faith and credit
obligation by The United States of America, and which in the case of (i) and (ii) are not callable
or redeemable at the option of the issuer thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation
or a specific payment of interest on or principal of any such U.S. Government Obligation held by
such custodian for the account of the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation evidenced by such depository receipt.



     Section 1.2. Other Definitions.



	 	 	 	 	 
	 	 	DEFINED IN
	TERM	 	SECTION
	“Bankruptcy Law”
	 	 	6.1	 
	“Custodian”
	 	 	6.1	 
	“Event of Default”
	 	 	6.1	 
	“Journal”
	 	 	10.15	 
	“Judgment Currency”
	 	 	10.16	 
	“Legal Holiday”
	 	 	10.7	 
	“Mandatory sinking fund payment”
	 	 	11.1	 
	“Market Exchange Rate”
	 	 	10.15	 
	“New York Banking Day”
	 	 	10.16	 
	“Optional sinking fund payment”
	 	 	11.1	 
	“Paying Agent”
	 	 	2.4	 
	“Registrar”
	 	 	2.4	 
	“Required Currency”
	 	 	10.16	 
	“Service Agent”
	 	 	2.4	 
	“Successor person”
	 	 	5.1	 






     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.



     “Indenture security holder” means a Securityholder.



     “Indenture to be qualified” means this Indenture.



     “Indenture trustee” or “institutional trustee” means the Trustee.



     “Obligor” on the indenture securities means the Company and any successor obligor upon the
Securities.



4









 





     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 and not otherwise defined herein are used
herein as so defined.



     Section 1.4. Rules of Construction.



     Unless the context otherwise requires:



     (a) a term has the meaning assigned to it;



     (b) an accounting term not otherwise defined has the meaning assigned to it in accordance with
generally accepted accounting principles;



     (c) 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;



     (d) “or” is not exclusive;



     (e) words in the singular include the plural, and in the plural include the singular; and



     (f) provisions apply to successive events and transactions.



ARTICLE II.




THE SECURITIES




     Section 2.1. Issuable in Series.



     The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more Series. All Securities of
a Series shall be identical except as may be set forth in a Board Resolution, a supplemental
indenture or an Officers’ Certificate detailing the adoption of the terms thereof pursuant to the
authority granted under a Board Resolution. In the case of Securities of a Series to be issued from
time to time, the Board Resolution, Officers’ Certificate or supplemental indenture may provide for
the method by which specified terms (such as interest rate, maturity date, record date or date from
which interest shall accrue) are to be determined. Securities may differ between Series in respect
of any matters, provided that all Series of Securities shall be equally and ratably entitled to the
benefits of the Indenture.



     Section 2.2. Establishment of Terms of Series of Securities.



     At or prior to the issuance of any Securities within a Series, the following shall be
established (as to the Series generally, in the case of Subsection 2.2.1 and either as to such
Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through
2.2.22) by a Board Resolution, a supplemental indenture or an Officers’ Certificate pursuant to
authority granted under a Board Resolution:



     2.2.1. The title of the Series (which shall distinguish the Securities of that particular
Series from the Securities of any other Series);



     2.2.2. The price or prices (expressed as a percentage of the principal amount thereof) at
which the Securities of the Series will be issued;



     2.2.3. Any limit upon the aggregate principal amount of the Securities of the Series which may
be authenticated and delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of
the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);



5









 





     2.2.4. The date or dates on which the principal of the Securities of the Series is payable;



     2.2.5. The rate or rates (which may be fixed or variable) per annum or, if applicable, the
method used to determine such rate or rates (including, but not limited to, any commodity,
commodity index, stock exchange index or financial index) at which the Securities of the Series
shall bear interest, if any, the date or dates from which such interest, if any, shall accrue, the
date or dates on which such interest, if any, shall commence and be payable and any regular record
date for the interest payable on any interest payment date;



     2.2.6. The place or places where the principal of and interest, if any, on the Securities of
the Series shall be payable, or the method of such payment, if by wire transfer, mail or other
means;



     2.2.7. If applicable, the period or periods within which, the price or prices at which and the
terms and conditions upon which the Securities of the Series may be redeemed, in whole or in part,
at the option of the Company;



     2.2.8. The obligation, if any, of the Company to redeem or purchase the Securities of the
Series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof
and the period or periods within which, the price or prices at which and the terms and conditions
upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant
to such obligation;



     2.2.9. The dates, if any, on which and the price or prices at which the Securities of the
Series will be repurchased by the Company at the option of the Holders thereof and other detailed
terms and provisions of such repurchase obligations;



     2.2.10. If other than denominations of $1,000 and any integral multiple thereof, the
denominations in which the Securities of the Series shall be issuable;



     2.2.11. The forms of the Securities of the Series in bearer or fully registered form (and, if
in fully registered form, whether the Securities will be issuable as Global Securities);



     2.2.12. If other than the principal amount thereof, the portion of the principal amount of the
Securities of the Series that shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.2;



     2.2.13. The currency of denomination of the Securities of the Series, which may be Dollars or
any Foreign Currency, including, but not limited to, the ECU, and if such currency of denomination
is a composite currency other than the ECU, the agency or organization, if any, responsible for
overseeing such composite currency;



     2.2.14. The designation of the currency, currencies or currency units in which payment of the
principal of and interest, if any, on the Securities of the Series will be made;



     2.2.15. If payments of principal of or interest, if any, on the Securities of the Series are
to be made in one or more currencies or currency units other than that or those in which such
Securities are denominated, the manner in which the exchange rate with respect to such payments
will be determined;



     2.2.16. The manner in which the amounts of payment of principal of or interest, if any, on the
Securities of the Series will be determined, if such amounts may be determined by reference to an
index based on a currency or currencies or by reference to a commodity, commodity index, stock
exchange index or financial index;



     2.2.17. The provisions, if any, relating to any security provided for the Securities of the
Series;



     2.2.18. If the holders of Securities of the Series may convert or exchange the Securities into
or for securities of the Issuer or of other entities or other property, the period or periods
within which, the rate or rates at which and the terms and conditions upon which Securities of the
Series may be converted or exchanged, in whole or in part;



6









 





     2.2.19. Any addition to or change in the Events of Default which applies to any Securities of
the Series and any change in the right of the Trustee or the requisite Holders of such Securities
to declare the principal amount thereof due and payable pursuant to Section 6.2;



     2.2.20. Any addition to or change in the covenants set forth in Articles IV or V which applies
to Securities of the Series;



     2.2.21. Any other terms of the Securities of the Series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by Section 9.1, but which may modify or
delete any provision of this Indenture insofar as it applies to such Series); and



     2.2.22. Any depositories, interest rate calculation agents, exchange rate calculation agents
or other agents with respect to Securities of such Series if other than those appointed herein.



     All Securities of any one Series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the
Board Resolution, supplemental indenture or Officers’ Certificate referred to above, and the
authorized principal amount of any Series may not be increased to provide for issuances of
additional Securities of such Series, unless otherwise provided in such Board Resolution,
supplemental indenture or Officers’ Certificate.



     Section 2.3. Execution and Authentication.



     Two Officers shall sign the Securities for the Company by manual or facsimile signature.



     If an Officer whose signature is on a Security no longer holds that office at the time the
Security is authenticated, the Security shall nevertheless be valid.



     A Security shall not be valid until authenticated by the manual signature of the Trustee or an
authenticating agent. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.



     The Trustee shall at any time, and from time to time, authenticate Securities for original
issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or
Officers’ Certificate, upon receipt by the Trustee of a Company Order. Such Company Order may
authorize authentication and delivery pursuant to oral or electronic instructions from the Company
or its duly authorized agent or agents, which oral instructions shall be promptly confirmed in
writing. Each Security shall be dated the date of its authentication unless otherwise provided by a
Board Resolution, a supplemental indenture hereto or an Officers’ Certificate.



     The aggregate principal amount of Securities of any Series outstanding at any time may not
exceed any limit upon the maximum principal amount for such Series set forth in the Board
Resolution, supplemental indenture hereto or Officers’ Certificate delivered pursuant to Section
2.2, except as provided in Section 2.8.



     Prior to the issuance of Securities of any Series, the Trustee shall have received and
(subject to Section 7.2) shall be fully protected in relying on: (a) the Board Resolution,
supplemental indenture hereto or Officers’ Certificate establishing the form of the Securities of
that Series or of Securities within that Series and the terms of the Securities of that Series or
of Securities within that Series, (b) an Officers’ Certificate complying with Section 10.4, and (c)
an Opinion of Counsel complying with Section 10.4.



     The Trustee shall have the right to decline to authenticate and deliver any Securities of such
Series: (a) if the Trustee, being advised by counsel, determines that such action may not lawfully
be taken; or (b) if the Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors and/or vice-presidents shall determine that such action
would expose the Trustee to personal liability to Holders of any then outstanding Series of
Securities.



     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



7









 







to authentication by the Trustee includes authentication by such agent. An authenticating
agent has the same rights as an Agent to deal with the Company or an Affiliate.



     Section 2.4. Registrar and Paying Agent.



     The Company shall maintain, with respect to each Series of Securities, at the place or places
specified with respect to such Series pursuant to Section 2.2, an office or agency where Securities
of such Series may be presented or surrendered for payment (“Paying Agent”), where Securities of
such Series may be surrendered for registration of transfer or exchange (“Registrar”) and where
notices and demands to or upon the Company in respect of the Securities of such Series and this
Indenture may be served (“Service Agent”). The Registrar shall keep a register with respect to each
Series of Securities and to their transfer and exchange. The Company will give prompt written
notice to the Trustee of the name and address, and any change in the name or address, of each
Registrar, Paying Agent or Service Agent. If at any time the Company shall fail to maintain any
such required Registrar, Paying Agent or Service Agent or shall fail to furnish the Trustee with
the name and address thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as
its agent to receive all such presentations, surrenders, notices and demands.



     The Company may also from time to time designate one or more co-registrars, additional paying
agents or additional service agents and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligations to maintain a Registrar, Paying Agent and Service Agent in
each place so specified pursuant to Section 2.2 for Securities of any Series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation or rescission and of
any change in the name or address of any such co-registrar, additional paying agent or additional
service agent. The term “Registrar” includes any co-registrar; the term “Paying Agent” includes any
additional paying agent; and the term “Service Agent” includes any additional service agent.



     The Company hereby appoints the Trustee the initial Registrar, Paying Agent and Service Agent
for each Series unless another Registrar, Paying Agent or Service Agent, as the case may be, is
appointed prior to the time Securities of that Series are first issued.



     Section 2.5. Paying Agent to Hold Money in Trust.



     The Company shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent will hold in trust, for the benefit of Securityholders of any Series of
Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or
interest on the Series of Securities, and will notify the Trustee 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 or a Subsidiary) shall have no further liability for the money. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund
for the benefit of Securityholders of any Series of Securities all money held by it as Paying
Agent.



     Section 2.6. 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 of each Series of Securities and
shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the Company
shall furnish to the Trustee at least ten days before each interest payment date and at such other
times as the Trustee may request in writing a list, in such form and as of such date as the Trustee
may reasonably require, of the names and addresses of Securityholders of each Series of Securities.



     Section 2.7. Transfer and Exchange.



     Where Securities of a Series are presented to the Registrar or a co-registrar with a request
to register a transfer or to exchange them for an equal principal amount of Securities of the same
Series, the Registrar shall



8









 







register the transfer or make the exchange if its requirements for such transactions are met. To
permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the
Registrar’s request. No service charge shall be made for any registration of transfer or exchange
(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
(other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to
Sections 2.11, 3.6 or 9.6).



     Neither the Company nor the Registrar shall be required (a) to issue, register the transfer
of, or exchange Securities of any Series for the period beginning at the opening of business
fifteen days immediately preceding the mailing of a notice of redemption of Securities of that
Series selected for redemption and ending at the close of business on the day of such mailing, or
(b) to register the transfer of or exchange Securities of any Series selected, called or being
called for redemption as a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part.



     Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities.



     If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of the same Series and
of like tenor and principal amount and bearing a number not contemporaneously outstanding.



     If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall authenticate and make
available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of
the same Series and of like tenor and principal amount and bearing a number not contemporaneously
outstanding.



     In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.



     Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.



     Every new Security of any Series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that Series duly issued hereunder.



     The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.



     Section 2.9. Outstanding Securities.



     The Securities outstanding at any time are all the Securities authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those reductions in the
interest on a Global Security effected by the Trustee in accordance with the provisions hereof and
those described in this Section as not outstanding.



     If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until the
Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.



     If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof)
holds on the Maturity of Securities of a Series money sufficient to pay such Securities payable on
that date, then on and after that date such Securities of the Series cease to be outstanding and
interest on them ceases to accrue.



9









 





     A Security does not cease to be outstanding because the Company or an Affiliate holds the
Security.



     In determining whether the Holders of the requisite principal amount of outstanding Securities
have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of a Discount Security that shall be deemed to be outstanding for such purposes
shall be the amount of the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.2.



     Section 2.10. Treasury Securities.



     In determining whether the Holders of the required principal amount of Securities of a Series
have concurred in any request, demand, authorization, direction, notice, consent or waiver
Securities of a Series owned by the Company or an Affiliate shall be disregarded, except that for
the purposes of determining whether the Trustee shall be protected in relying on any such request,
demand, authorization, direction, notice, consent or waiver only Securities of a Series that the
Trustee knows are so owned shall be so disregarded.



     Section 2.11. Temporary Securities.



     Until definitive Securities are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities upon a Company Order. 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 upon request shall authenticate definitive Securities of the same Series
and date of maturity in exchange for temporary Securities. Until so exchanged, temporary Securities
shall have the same rights under this Indenture as the definitive Securities.



     Section 2.12. Cancellation.



     The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar
and the Paying Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered
for transfer, exchange, payment, replacement or cancellation and shall destroy such canceled
Securities (subject to the record retention requirement of the Exchange Act) and deliver a
certificate of such destruction to the Company, unless the Company otherwise directs. The Company
may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for
cancellation.



     Section 2.13. Defaulted Interest.



     If the Company defaults in a payment of interest on a Series of Securities, it shall pay the
defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted
interest, to the persons who are Securityholders of the Series on a subsequent special record date.
The Company shall fix the record date and payment date. At least 30 days before the record date,
the Company shall mail to the Trustee and to each Securityholder of the Series a notice that states
the record date, the payment date and the amount of interest to be paid. The Company may pay
defaulted interest in any other lawful manner.



     Section 2.14. Global Securities.



     2.14.1. Terms of Securities. A Board Resolution, a supplemental indenture hereto or
an Officers’ Certificate shall establish whether the Securities of a Series shall be issued in
whole or in part in the form of one or more Global Securities and the Depository for such Global
Security or Securities.



     2.14.2. Transfer and Exchange. Notwithstanding any provisions to the contrary
contained in Section 2.7 of the Indenture and in addition thereto, any Global Security shall be
exchangeable pursuant to Section 2.7 of the Indenture for Securities registered in the names of
Holders other than the Depository for such Security or its nominee only if (i) such Depository
notifies the Company that it is unwilling or unable to continue as Depository for such Global
Security or if at any time such Depository ceases to be a clearing agency registered under the
Exchange



10









 







Act, and, in either case, the Company fails to appoint a successor Depository within 90 days of
such event, (ii) the Company executes and delivers to the Trustee an Officers’ Certificate to the
effect that such Global Security shall be so exchangeable or (iii) an Event of Default with respect
to the Securities represented by such Global Security shall have happened and be continuing. Any
Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for
Securities registered in such names as the Depository shall direct in writing in an aggregate
principal amount equal to the principal amount of the Global Security with like tenor and terms.



     Except as provided in this Section 2.14.2, a Global Security may not be transferred except as
a whole by the Depository with respect to such Global Security to a nominee of such Depository, by
a nominee of such Depository to such Depository or another nominee of such Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such a successor
Depository.



     2.14.3. Legend. Unless otherwise provided pursuant to Section 2.2, any Global
Security issued hereunder shall bear a legend in substantially the following form:



     “This Security is a Global Security within the meaning of the Indenture hereinafter referred
to and is registered in the name of the Depository or a nominee of the Depository. This Security is
exchangeable for Securities registered in the name of a person other than the Depository or its
nominee only in the limited circumstances described in the Indenture, and may not be transferred
except as a whole by the Depository to a nominee of the Depository, by a nominee of the Depository
to the Depository or another nominee of the Depository or by the Depository or any such nominee to
a successor Depository or a nominee of such a successor Depository.”



     2.14.4. Acts of Holders. The Depository, as a Holder, may appoint agents and
otherwise authorize participants to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action which a Holder is entitled to give or take under the
Indenture.



     2.14.5. Payments. Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 2.2, payment of the principal of, premium, if any,
and interest, if any, on any Global Security shall be made to the Holder thereof.



     2.14.6. Consents, Declaration and Directions. Except as provided in Section 2.14.5,
the Company, the Trustee and any Agent shall treat a person as the Holder of such principal amount
of outstanding Securities of such Series represented by a Global Security as shall be specified in
a written statement of the Depository with respect to such Global Security, for purposes of
obtaining any consents, declarations, waivers or directions required to be given by the Holders
pursuant to this Indenture.



     Section 2.15. CUSIP Numbers.



     The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and,
if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other elements of identification printed on
the Securities, and any such redemption shall not be affected by any defect in or omission of such
numbers.



ARTICLE III.




REDEMPTION




     Section 3.1. Notice to Trustee.



     The Company may, with respect to any Series of Securities, reserve the right to redeem and pay
the Series of Securities or may covenant to redeem and pay the Series of Securities or any part
thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such
Securities. If a Series of Securities is



11









 







redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all
or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the
Trustee of the redemption date and the principal amount of Series of Securities to be redeemed. The
Company shall give the notice at least 45 days before the redemption date (or such shorter notice
as may be acceptable to the Trustee).



     Section 3.2. Selection of Securities to be Redeemed.



     Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officers’ Certificate, if less than all the Securities of a Series are to be
redeemed, the Trustee shall select the Securities of the Series to be redeemed in any manner that
the Trustee deems fair and appropriate. The Trustee shall make the selection from Securities of the
Series outstanding not previously called for redemption. The Trustee may select for redemption
portions of the principal of Securities of the Series that have denominations larger than $1,000.
Securities of the Series and portions of them it selects shall be in amounts of $1,000 or whole
multiples of $1,000 or, with respect to Securities of any Series issuable in other denominations
pursuant to Section 2.2.10, the minimum principal denomination for each Series and integral
multiples thereof. Provisions of this Indenture that apply to Securities of a Series called for
redemption also apply to portions of Securities of that Series called for redemption.



     Section 3.3. Notice of Redemption.



     Unless otherwise indicated for a particular Series by a Board Resolution, a supplemental
indenture hereto or an Officers’ Certificate, 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 to each Holder
whose Securities are to be redeemed and if any Bearer Securities are outstanding, publish on one
occasion a notice in an Authorized Newspaper.



     The notice shall identify the Securities of the Series to be redeemed and shall state:



     (a) the redemption date;



     (b) the redemption price;



     (c) the name and address of the Paying Agent;



     (d) that Securities of the Series called for redemption must be surrendered to the Paying
Agent to collect the redemption price;



     (e) that interest on Securities of the Series called for redemption ceases to accrue on and
after the redemption date; and



     (f) any other information as may be required by the terms of the particular Series or the
Securities of a Series being redeemed.



     At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at its expense.



     Section 3.4. Effect of Notice of Redemption.



     Once notice of redemption is mailed or published as provided in Section 3.3, Securities of a
Series called for redemption become due and payable on the redemption date and at the redemption
price. A notice of redemption may not be conditional. Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price plus accrued interest to the redemption date.



     Section 3.5. Deposit of Redemption Price.



     On or before the redemption date, the Company shall deposit with the Paying Agent money
sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be
redeemed on that date.



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     Section 3.6. Securities Redeemed in Part.



     Upon surrender of a Security that is redeemed in part, the Trustee shall authenticate for the
Holder a new Security of the same Series and the same Maturity equal in principal amount to the
unredeemed portion of the Security surrendered.



ARTICLE IV.




COVENANTS




     Section 4.1. Payment of Principal and Interest.



     The Company covenants and agrees for the benefit of the Holders of each Series of Securities
that it will duly and punctually pay the principal of and interest, if any, on the Securities of
that Series in accordance with the terms of such Securities and this Indenture.



     Section 4.2. SEC 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. The
Company also shall comply with the other 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 year of
the Company, an Officers’ Certificate stating that a review of the activities of the Company and
its Subsidiaries during the preceding fiscal year 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).



     The Company will, so long as any of the Securities are outstanding, deliver to the Trustee,
forthwith upon becoming aware of any Default or Event of Default, an Officers’ Certificate
specifying such Default or Event of Default and what action the Company is taking or proposes to
take with respect thereto.



     Section 4.4. Stay, Extension and Usury Laws.



     The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture or the Securities; and the Company (to
the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law has been enacted.



     Section 4.5. Corporate Existence.



     Subject to Article V, the Company will do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence and the corporate, partnership or other
existence of each Significant Subsidiary in accordance with the respective organizational documents
of each Significant Subsidiary and the rights



13









 




(charter and statutory), licenses and franchises of the Company and its Significant Subsidiaries;
provided, however, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence of any Significant
Subsidiary, if the Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries taken as a whole and
that the loss thereof is not adverse in any material respect to the Holders.




     Section 4.6. Taxes.



     The Company shall, and shall cause each of its Significant Subsidiaries to, pay prior to
delinquency all taxes, assessments and governmental levies, except as contested in good faith and
by appropriate proceedings.



ARTICLE V.




SUCCESSORS




     Section 5.1. When Company May Merge, Etc.



     The Company shall not consolidate with or merge into, or convey, transfer or lease all or
substantially all of its properties and assets to, any person (a “successor person”), and may not
permit any person to merge into, or convey, transfer or lease its properties and assets
substantially as an entirety to, the Company, unless:



     (a) the successor person (if any) is a corporation, partnership, trust or other entity
organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly
assumes the Company’s obligations on the Securities and under this Indenture and



     (b) immediately after giving effect to the transaction, no Default or Event of Default, shall
have occurred and be continuing.



     The Company shall deliver to the Trustee prior to the consummation of the proposed transaction
an Officers’ Certificate to the foregoing effect and an Opinion of Counsel stating that the
proposed transaction and such supplemental indenture comply with this Indenture.



     Section 5.2. Successor Corporation Substituted.



     Upon any consolidation or merger, or any sale, lease, conveyance or other disposition of all
or substantially all of the assets of the Company in accordance with Section 5.1, the successor
corporation formed by such consolidation or into or with which the Company is merged or to which
such sale, lease, conveyance or other disposition is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture with the same effect as
if such successor person has been named as the Company herein; provided, however,
that the predecessor Company in the case of a sale, lease, conveyance or other disposition shall
not be released from the obligation to pay the principal of and interest, if any, on the
Securities.



ARTICLE VI.




DEFAULTS AND REMEDIES




     Section 6.1. Events of Default.



     “Event of Default,” wherever used herein with respect to Securities of any Series, means any
one of the following events, unless in the establishing Board Resolution, supplemental indenture or
Officers’ Certificate, it is provided that such Series shall not have the benefit of said Event of
Default:



14









 





     (a) default in the payment of any interest on any Security of that Series when it becomes due
and payable, and continuance of such default for a period of 30 days (unless the entire amount of
such payment is deposited by the Company with the Trustee or with a Paying Agent prior to the
expiration of such period of 30 days); or



     (b) default in the payment of the principal of any Security of that Series at its Maturity; or



     (c) default in the deposit of any sinking fund payment, when and as due in respect of any
Security of that Series; or



     (d) default in the performance or breach of any covenant or warranty of the Company in this
Indenture (other than a covenant or warranty that has been included in this Indenture solely for
the benefit of Series of Securities other than that Series), which default continues uncured for a
period of 60 days after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of
the outstanding Securities of that Series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or



     (e) the Company or any of its Significant Subsidiaries pursuant to or within the meaning of
any Bankruptcy Law:




     (i) commences a voluntary case,




     (ii) consents to the entry of an order for relief against it in an involuntary case,




     (iii) consents to the appointment of a Custodian of it or for all or substantially all
of its property,




     (iv) makes a general assignment for the benefit of its creditors, or




     (v) generally is unable to pay its debts as the same become due; or



     (f) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:




     (i) is for relief against the Company or any of its Significant Subsidiaries in an
involuntary case,




     (ii) appoints a Custodian of the Company or any of its Significant Subsidiaries or for
all or substantially all of its property, or




     (iii) orders the liquidation of the Company or any of its Significant Subsidiaries,
and the order or decree remains unstayed and in effect for 60 days; or



     (g) any other Event of Default provided with respect to Securities of that Series, which is
specified in a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, in
accordance with Section 2.2.19.



     The term “Bankruptcy Law” means title 11, U.S. Code or any similar Federal or State law for
the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.



     Section 6.2. Acceleration of Maturity; Rescission and Annulment.



     If an Event of Default with respect to Securities of any Series at the time outstanding occurs
and is continuing (other than an Event of Default referred to in Section 6.1(e) or (f)) then in
every such case the Trustee or the Holders of not less than 25% in principal amount of the
outstanding Securities of that Series may declare the



15









 







principal amount (or, if any Securities of that Series are Discount Securities, such portion of the
principal amount as may be specified in the terms of such Securities) of and accrued and unpaid
interest, if any, on all of the Securities of that Series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and upon any such
declaration such principal amount (or specified amount) and accrued and unpaid interest, if any,
shall become immediately due and payable. If an Event of Default specified in Section 6.1(e) or (f)
shall occur, the principal amount (or specified amount) of and accrued and unpaid interest, if any,
on all 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.



     At any time after such a declaration of acceleration with respect to any Series has been made
and before a judgment or decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal amount of the
outstanding Securities of that Series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:



     (a) the Company has paid or deposited with the Trustee a sum sufficient to pay




     (i) all overdue interest, if any, on all Securities of that Series,




     (ii) the principal of any Securities of that Series which have become due otherwise
than by such declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Securities,




     (iii) to the extent that payment of such interest is lawful, interest upon any overdue
principal and overdue interest at the rate or rates prescribed therefor in such Securities,
and




     (iv) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel;



and




     (b) all Events of Default with respect to Securities of that Series, other than the
non-payment of the principal of Securities of that Series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section 6.13.



     No such rescission shall affect any subsequent Default or impair any right consequent thereon.



     Section 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee.



     The Company covenants that if



     (a) default is made in the payment of any interest on any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or



     (b) default is made in the payment of principal of any Security at the Maturity thereof, or



     (c) default is made in the deposit of any sinking fund payment when and as due by the terms of
a Security,


then, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of
such Securities, the whole amount then due and payable on such Securities for principal and
interest and, to the extent that payment of such interest shall be legally enforceable, interest on
any overdue principal or any overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.




16









 








     If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities and collect the
moneys adjudged or deemed to be payable in the manner provided by law out of the property of the
Company or any other obligor upon such Securities, wherever situated.



     If an Event of Default with respect to any Securities of any Series occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.



     Section 6.4. Trustee May File Proofs of Claim.



     In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or any other obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,



     (a) to file and prove a claim for the whole amount of principal and interest owing and unpaid
in respect of the Securities and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and



     (b) to collect and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.7.



     Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.



     Section 6.5. Trustee May Enforce Claims Without Possession of Securities.



     All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.



     Section 6.6. Application of Money Collected.



     Any money collected by the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:



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     First: To the payment of all amounts due the Trustee under Section 7.7; and



     Second: To the payment of the amounts then due and unpaid for principal of and interest on the
Securities in respect of which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and payable on such
Securities for principal and interest, respectively; and



     Third:To the Company.



     Section 6.7.  Limitation on Suits.



     No Holder of any Security of any Series shall have any right 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



     (a) such Holder has previously given written notice to the Trustee of a continuing Event of
Default with respect to the Securities of that Series;



     (b) the Holders of not less than 25% in principal amount of the outstanding Securities of that
Series shall have made written request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;



     (c) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance with such request;



     (d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity
has failed to institute any such proceeding; and



     (e) no direction inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in principal amount of the outstanding Securities
of that Series;


it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such Holders.




     Section 6.8. Unconditional Right of Holders to Receive Principal and Interest.



     Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of and
interest, if any, on such Security on the Stated Maturity or Stated Maturities expressed in such
Security (or, in the case of redemption, on the redemption date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without the consent of such
Holder.



     Section 6.9. Restoration of Rights and Remedies.



     If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.



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     Section 6.10. Rights and Remedies Cumulative.



     Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in Section 2.8, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right or remedy.



     Section 6.11. Delay or Omission Not Waiver.



     No delay or omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.



     Section 6.12. Control by Holders.



     The Holders of a majority in principal amount of the outstanding Securities of any Series
shall have the right to 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, with
respect to the Securities of such Series, provided that



     (a) such direction shall not be in conflict with any rule of law or with this Indenture,



     (b) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and



     (c) subject to the provisions of Section 6.1, the Trustee shall have the right to decline to
follow any such direction if the Trustee in good faith shall, by a Responsible Officer of the
Trustee, determine that the proceeding so directed would involve the Trustee in personal liability.



     Section 6.13. Waiver of Past Defaults.



     Subject to Section 6.2, the Holders of not less than a majority in principal amount of the
outstanding Securities of any Series may on behalf of the Holders of all the Securities of such
Series waive any past Default hereunder with respect to such Series and its consequences, except a
Default in the payment of the principal of or interest on any Security of such Series (provided,
however, that the Holders of a majority in principal amount of the outstanding Securities of any
Series may rescind an acceleration and its consequences, including any related payment default that
resulted from such acceleration). Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.



     Section 6.14. Undertaking for Costs.



     All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, 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, suffered or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit instituted by the Company,
to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the outstanding Securities of any Series, or to any suit instituted
by any Holder for the



19









 







enforcement of the payment of the principal of or interest on any Security on or after the Stated
Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the
redemption date).



ARTICLE VII.




TRUSTEE




     Section 7.1. Duties of Trustee.



     (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise 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 man would exercise or use under the circumstances in the conduct of his own
affairs.



     (b) Except during the continuance of an Event of Default:




     (i) The Trustee need perform only those duties that are specifically set forth in this
Indenture and no others.




     (ii) 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
Officers’ Certificates or Opinions of Counsel furnished to the Trustee and conforming to the
requirements of this Indenture; however, in the case of any such Officers’
Certificates or Opinions of Counsel which by any provisions hereof are specifically required
to be furnished to the Trustee, the Trustee shall examine such Officers’ Certificates and
Opinions of Counsel to determine whether or not they conform to the requirements of this
Indenture.



     (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:




     (i) This paragraph does not limit the effect of paragraph (b) of this Section.




     (ii) The Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts.




     (iii) The Trustee shall not be liable with respect to any action taken, suffered or
omitted to be taken by it with respect to Securities of any Series in good faith in
accordance with the direction of the Holders of a majority in principal amount of the
outstanding Securities of such Series 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 with respect to the Securities of such
Series.



     (d) Every provision of this Indenture that in any way relates to the Trustee is subject to
paragraph (a), (b) and (c) of this Section.



     (e) 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.



     (g) No provision of this Indenture shall require the Trustee to risk its own funds or
otherwise incur any financial liability in the performance of any of its duties, or in the exercise
of any of its rights or powers, if it



20









 







shall have reasonable grounds for believing that repayment of such funds or adequate indemnity
against such risk is not reasonably assured to it.



     (h) The Paying Agent, the Registrar and any authenticating agent shall be entitled to the
protections and immunities as are set forth in paragraphs (a), (b) and (c) of this Section with
respect to the Trustee.



     Section 7.2. Rights of Trustee.



     (a) The Trustee may rely on and shall be protected in acting or refraining from acting upon
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. The 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.



     (c) The Trustee may act through agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care. No Depository shall be deemed an agent of the
Trustee and the Trustee shall not be responsible for any act or omission by any Depository.



     (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.



     (e) The Trustee may consult with counsel and the 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.



     (f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders of Securities unless such
Holders shall have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such request or
direction.



     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. The Trustee is also
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,
and it shall not be responsible for any statement in the Securities other than its authentication.



     Section 7.5. Notice of Defaults.



     If a Default or Event of Default occurs and is continuing with respect to the Securities of
any Series and if it is known to a Responsible Officer of the Trustee, the Trustee shall mail to
each Securityholder of the Securities of that Series and, if any Bearer Securities are outstanding,
publish on one occasion in an Authorized Newspaper, notice of a Default or Event of Default within
90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of
such Default or Event of Default. Except in the case of a Default or Event of Default in payment of
principal of or interest on any Security of any Series, the Trustee may withhold the notice if and
so long as its corporate trust committee or a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of Securityholders of that Series.



21









 





     Section 7.6. Reports by Trustee to Holders.



     Within 60 days after May 15 in each year, the Trustee shall transmit by mail to all
Securityholders, as their names and addresses appear on the register kept by the Registrar and, if
any Bearer Securities are outstanding, publish in an Authorized Newspaper, a brief report dated as
of such May 15, in accordance with, and to the extent required under, TIA Section 313.



     A copy of each report at the time of its mailing to Securityholders of any Series shall be
filed with the SEC and each stock exchange on which the Securities of that Series are listed. The
Company shall promptly notify the Trustee when Securities of any Series 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
out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee’s agents and counsel.



     The Company shall indemnify the Trustee (including the cost of defending itself) against any
loss, liability or expense incurred by it except as set forth in the next paragraph in the
performance of its duties under this Indenture as Trustee or Agent. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall cooperate in the 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. This
indemnification shall apply to officers, directors, employees, shareholders and agents of the
Trustee.



     The Company need not reimburse any expense or indemnify against any loss or liability incurred
by the Trustee or by any officer, director, employee, shareholder or agent of 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 of any Series on all money or property held or collected by the Trustee,
except that held in trust to pay principal and interest on particular Securities of that Series.



     When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.1(e) or (f) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration 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 with respect to the Securities of one or more Series by so notifying
the Company. The Holders of a majority in principal amount of the Securities of any Series may
remove the Trustee with respect to that Series by so notifying the Trustee and the Company. The
Company may remove the Trustee with respect to Securities of one or more Series if:



     (a) the Trustee fails to comply with Section 7.10;



     (b) 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;



     (c) a Custodian or public officer takes charge of the Trustee or its property; or



     (d) the Trustee becomes incapable of acting.



22









 





     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 with respect to the Securities of any one or more Series 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 Securities of the applicable
Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.



     If the Trustee with respect to the Securities of any one or more Series fails to comply with
Section 7.10, any Securityholder of the applicable Series may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.



     A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all
property held by it as Trustee to the successor Trustee subject to the lien provided for in Section
7.7, 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 with respect to each Series of
Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall mail a
notice of its succession to each Securityholder of each such Series and, if any Bearer Securities
are outstanding, publish such notice on one occasion in an Authorized Newspaper. 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 successor corporation without any
further act shall be the successor Trustee.



     Section 7.10. Eligibility; Disqualification.



     This Indenture shall always have a Trustee who satisfies the requirements of TIA Section
310(a)(1), (2) and (5). The Trustee shall always have a combined capital and surplus of at least
$25,000,000 as set forth in its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b).



     Section 7.11. Preferential Collection of Claims Against Company.



     The Trustee is subject to 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.



ARTICLE VIII.




SATISFACTION AND DISCHARGE; DEFEASANCE




     Section 8.1. Satisfaction and Discharge of Indenture.



     This Indenture shall upon Company Order cease to be of further effect (except as hereinafter
provided in this Section 8.1), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when



23









 





     (a) either




     (i) all Securities theretofore authenticated and delivered (other than Securities that
have been destroyed, lost or stolen and that have been replaced or paid) have been delivered
to the Trustee for cancellation; or




     (ii) all such Securities not theretofore delivered to the Trustee for cancellation




     (1) have become due and payable, or




     (2) will become due and payable at their Stated Maturity within one year, or




     (3) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company, or




     (4) are deemed paid and discharged pursuant to Section 8.3, as applicable;


and the Company, in the case of (1), (2) or (3) above, has deposited or caused to be deposited with
the Trustee as trust funds in trust an amount sufficient for the purpose of paying and discharging
the entire indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and interest to the date of such deposit (in the case of Securities
which have become due and payable on or prior to the date of such deposit) or to the Stated
Maturity or redemption date, as the case may be;




     (b) the Company has paid or caused to be paid all other sums payable hereunder by the Company;
and



     (c) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.



     Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 7.7, and, if money shall have been deposited with the Trustee
pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.1, 8.2 and 8.5
shall survive.



     Section 8.2. Application of Trust Funds; Indemnification.



     (a) Subject to the provisions of Section 8.5, all money deposited with the Trustee pursuant to
Section 8.1, all money and U.S. Government Obligations or Foreign Government Obligations deposited
with the Trustee pursuant to Section 8.3 or 8.4 and all money received by the Trustee in respect of
U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant
to Section 8.3 or 8.4, shall be held in trust and applied by it, in accordance with the provisions
of the Securities and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may determine, to the persons
entitled thereto, of the principal and interest for whose payment such money has been deposited
with or received by the Trustee or to make mandatory sinking fund payments or analogous payments as
contemplated by Sections 8.3 or 8.4.



     (b) The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against U.S. Government Obligations or Foreign Government Obligations
deposited pursuant to Sections 8.3 or 8.4 or the interest and principal received in respect of such
obligations other than any payable by or on behalf of Holders.



     (c) The Trustee shall deliver or pay to the Company from time to time upon Company Request any
U.S. Government Obligations or Foreign Government Obligations or money held by it as provided in
Sections 8.3 or 8.4 which, in the opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the Trustee, are then in
excess of the amount thereof which then would have



24









 







been required to be deposited for the purpose for which such U.S. Government Obligations or
Foreign Government Obligations or money were deposited or received. This provision shall not
authorize the sale by the Trustee of any U.S. Government Obligations or Foreign Government
Obligations held under this Indenture.



     Section 8.3. Legal Defeasance of Securities of any Series.



     Unless this Section 8.3 is otherwise specified pursuant to Section 2.2.21 to be inapplicable
to Securities of any Series, the Company shall be deemed to have paid and discharged the entire
indebtedness on all the outstanding Securities of such Series on the 91st day after the date of the
deposit referred to in subparagraph (d) hereof, and the provisions of this Indenture, as it relates
to such outstanding Securities of such Series, shall no longer be in effect (and the Trustee, at
the expense of the Company, shall, at Company Request, execute proper instruments acknowledging the
same), except as to:



     (a) the rights of Holders of Securities of such Series to receive, from the trust funds
described in subparagraph (d) hereof, (i) payment of the principal of and each installment of
principal of and interest on the outstanding Securities of such Series on the Stated Maturity of
such principal or installment of principal or interest and (ii) the benefit of any mandatory
sinking fund payments applicable to the Securities of such Series on the day on which such payments
are due and payable in accordance with the terms of this Indenture and the Securities of such
Series;



     (b) the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and 8.5; and



     (c) the rights, powers, trust and immunities of the Trustee hereunder;



provided that, the following conditions shall have been satisfied:



     (d) the Company shall have deposited or caused to be deposited irrevocably with the Trustee as
trust funds in trust for the purpose of making the following payments, specifically pledged as
security for and dedicated solely to the benefit of the Holders of such Securities (i) in the case
of Securities of such Series denominated in Dollars, cash in Dollars (or such other money or
currencies as shall then be legal tender in the United States) and/or U.S. Government Obligations,
or (ii) in the case of Securities of such Series denominated in a Foreign Currency (other than a
composite currency), money and/or Foreign Government Obligations, which through the payment of
interest and principal in respect thereof, in accordance with their terms, will provide (and
without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than
one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion
of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge each installment of principal
(including mandatory sinking fund or analogous payments) of and interest, if any, on all the
Securities of such Series on the dates such installments of interest or principal are due;



     (e) such deposit will not result in a breach or violation of, or constitute a default under,
this Indenture or any other agreement or instrument to which the Company is a party or by which it
is bound;



     (f) no Default or Event of Default with respect to the Securities of such Series shall have
occurred and be continuing on the date of such deposit or during the period ending on the 91st day
after such date;



     (g) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel to the effect that (i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of execution of this Indenture, there has
been a change in the applicable Federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the Holders of the Securities of such
Series will not recognize income, gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal income tax on the same amount and
in the same manner and at the same times as would have been the case if such deposit, defeasance
and discharge had not occurred;



25









 





     (h) the Company shall have delivered to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Company with the intent of preferring the Holders of the Securities of
such Series over any other creditors of the company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company;



     (i) such deposit shall not result in the trust arising from such deposit constituting an
investment company (as defined in the Investment Company Act of 1940, as amended), or such trust
shall be qualified under such Act or exempt from regulation thereunder; and



     (j) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to the defeasance
contemplated by this Section have been complied with.



     Section 8.4. Covenant Defeasance.



     Unless this Section 8.4 is otherwise specified pursuant to Section 2.2.21 to be inapplicable
to Securities of any Series, on and after the 91st day after the date of the deposit referred to in
subparagraph (a) hereof, the Company may omit to comply with any term, provision or condition set
forth under Sections 4.2, 4.3, 4.4, 4.5, 4.6, and 5.1 as well as any additional covenants contained
in a supplemental indenture hereto for a particular Series of Securities or a Board Resolution or
an Officers’ Certificate delivered pursuant to Section 2.2.21 (and the failure to comply with any
such covenants shall not constitute a Default or Event of Default under Section 6.1) and the
occurrence of any event described in clause (e) of Section 6.1 shall not constitute a Default or
Event of Default hereunder, with respect to the Securities of such Series, provided that the
following conditions shall have been satisfied:



     (a) With reference to this Section 8.4, the Company has deposited or caused to be irrevocably
deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such
Securities (i) in the case of Securities of such Series denominated in Dollars, cash in Dollars (or
such other money or currencies as shall then be legal tender in the United States) and/or U.S.
Government Obligations, or (ii) in the case of Securities of such Series denominated in a Foreign
Currency (other than a composite currency), money and/or Foreign Government Obligations, which
through the payment of interest and principal in respect thereof, in accordance with their terms,
will provide (and without reinvestment and assuming no tax liability will be imposed on such
Trustee), not later than one day before the due date of any payment of money, an amount in cash,
sufficient, in the opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the Trustee, to pay principal
and interest, if any, on and any mandatory sinking fund in respect of the Securities of such Series
on the dates such installments of interest or principal are due;



     (b) Such deposit will not result in a breach or violation of, or constitute a default under,
this Indenture or any other agreement or instrument to which the Company is a party or by which it
is bound;



     (c) No Default or Event of Default with respect to the Securities of such Series shall have
occurred and be continuing on the date of such deposit or during the period ending on the 91st day
after such date;



     (d) the Company shall have delivered to the Trustee an Opinion of Counsel confirming that
Holders of the Securities of such Series will not recognize income, gain or loss for federal income
tax purposes as a result of such deposit and defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred;



     (e) the Company shall have delivered to the Trustee an Officers’ Certificate stating the
deposit was not made by the Company with the intent of preferring the Holders of the Securities of
such Series over any other creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company; and



26









 





     (f) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the defeasance
contemplated by this Section have been complied with.



     Section 8.5. Repayment to Company.



     The Trustee and the Paying Agent shall pay to the Company upon request any money held by them
for the payment of principal and interest that remains unclaimed for two years. After that,
Securityholders entitled to the money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another person.



     Section 8.6. Reinstatement.



     If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in
accordance with Sections 8.1, 8.3 or 8.4, as the case may be, by reason of any legal proceeding or
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, 8.3 or 8.4, as the case may be, until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance with Section 8.1, 8.3 or 8.4, as
the case may be; provided, however, that if the Company makes any payment of
principal of, premium, if any, or interest on any Securities because of 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 or U.S. Government Obligations held by the Trustee or Paying
Agent.



ARTICLE IX.




AMENDMENTS AND WAIVERS




     Section 9.1. Without Consent of Holders.



     The Company and the Trustee may amend or supplement this Indenture or the Securities of one or
more Series without the consent of any Securityholder:



     (a) to cure any ambiguity, defect or inconsistency;



     (b) to provide for uncertificated securities in addition to or in place of certificated
securities;



     (c) to provide for the assumption of our obligations to holders of any debt security in the
case of a merger or consolidation or sale of all or substantially all of our assets;



     (d) to make any change that would provide any additional rights or benefits to the holders of
securities or that does not adversely affect the legal rights under the Indenture of any such
holder;



     (e) to comply with requirements of the SEC in order to effect or maintain the qualification of
an indenture under the Trust Indenture Act;



     (f) to conform the text of the indentures to any provision of the Description of Debt
Securities to the extent that such provision in the Description of Debt Securities was intended to
be a verbatim recitation of a provision of the indentures;



     (g) to provide for the issuance of additional securities in accordance with the limitations
set forth in the indenture as of the date of the indenture;



27









 





     (h) to allow any guarantor to execute a supplemental indenture with respect to debt securities
and to release guarantors in accordance with the terms of the indenture; or



     (i) to add additional obligors under the indenture and the securities.



     The consent of holders is not necessary under the indentures to approve the particular form of
any proposed amendment. It is sufficient if such consent approves the substance of the proposed
amendment.



     Section 9.2. With Consent of Holders.



     The Company and the Trustee may enter into a supplemental indenture with the written consent
of the Holders of at least a majority in principal amount of the outstanding Securities of each
Series affected by such supplemental indenture (including consents obtained in connection with a
tender offer or exchange offer for the Securities of such Series), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights of the Securityholders of
each such Series. Except as provided in Section 6.13, the Holders of at least a majority in
principal amount of the outstanding Securities of each Series affected by such waiver by notice to
the Trustee (including consents obtained in connection with a tender offer or exchange offer for
the Securities of such Series) may waive compliance by the Company with any provision of this
Indenture or the Securities with respect to such Series.



     It shall not be necessary for the consent of the Holders of Securities under this Section 9.2
to approve the particular form of any proposed supplemental indenture or waiver, but it shall be
sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver
under this section becomes effective, the Company shall mail to the Holders of Securities affected
thereby and, if any Bearer Securities affected thereby are outstanding, publish on one occasion in
an Authorized Newspaper, a notice briefly describing the supplemental indenture or waiver. Any
failure by the Company to mail or publish such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such supplemental indenture or waiver.



     Section 9.3. Limitations.



     Without the consent of each Securityholder affected, an amendment or waiver may not:



     (a) change the amount of Securities whose Holders must consent to an amendment, supplement or
waiver;



     (b) reduce the rate of or extend the time for payment of interest (including default interest)
on any Security;



     (c) reduce the principal or change the Stated Maturity of any Security or reduce the amount
of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation;



     (d) reduce the principal amount of Discount Securities payable upon acceleration of the
maturity thereof;



     (e) waive a Default or Event of Default in the payment of the principal of or interest, if
any, on any Security (except a rescission of acceleration of the Securities of any Series by the
Holders of at least a majority in principal amount of the outstanding Securities of such Series and
a waiver of the payment default that resulted from such acceleration);



     (f) make the principal of or interest, if any, on any Security payable in any currency other
than that stated in the Security;



     (g) make any change in Sections 6.8, 6.13, 9.3 (this sentence), 10.15 or 10.16; or



28









 





     (h) waive a redemption payment with respect to any Security or change any of the provisions
with respect to the redemption of any Securities.



     Section 9.4. Compliance with Trust Indenture Act.



     Every amendment to this Indenture or the Securities of one or more Series shall be set forth
in a supplemental indenture hereto that complies with the TIA as then in effect.



     Section 9.5. Revocation and Effect of Consents.



     Until an amendment or waiver becomes effective, a consent to it by a Holder of a Security 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 if the Trustee receives the notice of revocation before
the date the amendment or waiver becomes effective.



     Any amendment or waiver once effective shall bind every Securityholder of each Series affected
by such amendment or waiver unless it is of the type described in any of clauses (a) through (g) of
Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder’s Security.



     Section 9.6. Notation on or Exchange of Securities.



     The Trustee may place an appropriate notation about an amendment or waiver on any Security of
any Series thereafter authenticated. The Company in exchange for Securities of that Series may
issue and the Trustee shall authenticate upon request new Securities of that Series that reflect
the amendment or waiver.



     Section 9.7. Trustee Protected.



     In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee shall sign all supplemental indentures,
except that the Trustee need not sign any supplemental indenture that adversely affects its rights.



ARTICLE X.




MISCELLANEOUS




     Section 10.1. Trust Indenture Act Controls.



     If any provision of this Indenture limits, qualifies, or conflicts with another provision
which is required or deemed to be included in this Indenture by the TIA, such required or deemed
provision shall control.



     Section 10.2. Notices.



     Any notice or communication by the Company or the Trustee to the other is duly given if in
writing and delivered in person or mailed by first-class mail:



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If to the Company:



Silverleaf Resorts, Inc.

1221 River Bend, Suite 120

Dallas, TX 75247

Attention: Chief Financial Officer



If to the Trustee:



[Name of Trustee]

[Address]



                                        



                                        

Attention:




     The Company or the Trustee by notice to the other may designate additional or different
addresses for subsequent notices or communications.



     Any notice or communication to a Securityholder shall be mailed by first-class mail to his
address shown on the register kept by the Registrar and, if any Bearer Securities are outstanding,
published in an Authorized Newspaper. Failure to mail a notice or communication to a Securityholder
of any Series or any defect in it shall not affect its sufficiency with respect to other
Securityholders of that or any other Series.



     If a notice or communication is mailed or published in the manner provided above, within the
time prescribed, it is duly given, whether or not the Securityholder receives it.



     If the Company mails a notice or communication to Securityholders, it shall mail a copy to the
Trustee and each Agent at the same time.



     Section 10.3. Communication by Holders with Other Holders.



     Securityholders of any Series may communicate pursuant to TIA Section 312(b) with other
Securityholders of that Series or any other Series with respect to their rights under this
Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar
and anyone else shall have the protection of TIA Section 312(c).



     Section 10.4. 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 stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed action have been
complied with; and



     (b) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.



     Section 10.5. 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 Section 314(a)(4)) shall
comply with the provisions of TIA Section 314(e) and shall include:



     (a) a statement that the person making such certificate or opinion has read such covenant or
condition;



30









 





     (b) 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;



     (c) a statement that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and



     (d) a statement as to whether or not, in the opinion of such person, such condition or
covenant has been complied with.



     Section 10.6. Rules by Trustee and Agents.



     The Trustee may make reasonable rules for action by or a meeting of Securityholders of one or
more Series. Any Agent may make reasonable rules and set reasonable requirements for its functions.



     Section 10.7. Legal Holidays.



     Unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture
for a particular Series, a “Legal Holiday” is any day that is not a Business Day. If a payment date
is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for the intervening period.



     Section 10.8. 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.



     Section 10.9. Counterparts.



     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.



     Section 10.10. Governing Laws.



     THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE CONFLICT OF
LAWS PROVISIONS THEREOF.



     Section 10.11. No Adverse Interpretation of Other Agreements.



     This Indenture may not be used to interpret another indenture, loan or debt agreement of the
Company or a Subsidiary. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.



     Section 10.12. 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 10.13. 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.



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     Section 10.14. Table of Contents, Headings, Etc.



     The Table of Contents, Cross Reference Table, 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.



     Section 10.15. Securities in a Foreign Currency or in ECU.



     Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an
Officers’ Certificate delivered pursuant to Section 2.2 of this Indenture with respect to a
particular Series of Securities, whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount of Securities of all Series or
all Series affected by a particular action at the time outstanding and, at such time, there are
outstanding Securities of any Series which are denominated in a coin or currency other than Dollars
(including ECUs), then the principal amount of Securities of such Series which shall be deemed to
be outstanding for the purpose of taking such action shall be that amount of Dollars that could be
obtained for such amount at the Market Exchange Rate at such time. For purposes of this Section
10.15, “Market Exchange Rate” shall mean the noon Dollar buying rate in New York City for cable
transfers of that currency as published by the Federal Reserve Bank of New York; provided,
however, in the case of ECUs, Market Exchange Rate shall mean the rate of exchange
determined by the Commission of the European Union (or any successor thereto) as published in the
Official Journal of the European Union (such publication or any successor publication, the
“Journal”). If such Market Exchange Rate is not available for any reason with respect to such
currency, the Trustee shall use, in its sole discretion and without liability on its part, such
quotation of the Federal Reserve Bank of New York or, in the case of ECUs, the rate of exchange as
published in the Journal, as of the most recent available date, or quotations or, in the case of
ECUs, rates of exchange from one or more major banks in The City of New York or in the country of
issue of the currency in question or, in the case of ECUs, in Luxembourg or such other quotations
or, in the case of ECUs, rates of exchange as the Trustee, upon consultation with the Company,
shall deem appropriate. The provisions of this paragraph shall apply in determining the equivalent
principal amount in respect of Securities of a Series denominated in currency other than Dollars in
connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.



     All decisions and determinations of the Trustee regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in its sole discretion
and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all
purposes and irrevocably binding upon the Company and all Holders.



     Section 10.16. Judgment Currency.



     The Company agrees, to the fullest extent that it may effectively do so under applicable law,
that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of or interest or other amount on the Securities of any Series (the
“Required Currency”) into a currency in which a judgment will be rendered (the “Judgment
Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the day on which final unappealable judgment is entered, unless such day is
not a New York Banking Day, then, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which
final unappealable judgment is entered and (b) its obligations under this Indenture to make
payments in the Required Currency (i) shall not be discharged or satisfied by any tender, any
recovery pursuant to any judgment (whether or not entered in accordance with subsection (a)), in
any currency other than the Required Currency, except to the extent that such tender or recovery
shall result in the actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required Currency the amount, if
any, by which such actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable, and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture. For purposes of the foregoing, “New York Banking Day”
means any day except a Saturday, Sunday or a legal holiday in The City of New York on which banking
institutions are authorized or required by law, regulation or executive order to close.



32









 





ARTICLE XI.




SINKING FUNDS




     Section 11.1. Applicability of Article.



     The provisions of this Article shall be applicable to any sinking fund for the retirement of
the Securities of a Series, except as otherwise permitted or required by any form of Security of
such Series issued pursuant to this Indenture.



     The minimum amount of any sinking fund payment provided for by the terms of the Securities of
any Series is herein referred to as a “mandatory sinking fund payment” and any other amount
provided for by the terms of Securities of such Series is herein referred to as an “optional
sinking fund payment.” If provided for by the terms of Securities of any Series, the cash amount of
any sinking fund payment may be subject to reduction as provided in Section 11.2. Each sinking fund
payment shall be applied to the redemption of Securities of any Series as provided for by the terms
of the Securities of such Series.



     Section 11.2. Satisfaction of Sinking Fund Payments with Securities.



     The Company may, in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of any Series to be made pursuant to the terms of such Securities



     (1) deliver outstanding Securities of such Series to which such sinking fund payment is
applicable (other than any of such Securities previously called for mandatory sinking fund
redemption) and (2) apply as credit Securities of such Series to which such sinking fund payment is
applicable and which have been redeemed either at the election of the Company pursuant to the terms
of such Series of Securities (except pursuant to any mandatory sinking fund) or through the
application of permitted optional sinking fund payments or other optional redemptions pursuant to
the terms of such Securities, provided that such Securities have not been previously so credited.
Such Securities shall be received by the Trustee, together with an Officers’ Certificate with
respect thereto, not later than 15 days prior to the date on which the Trustee begins the process
of selecting Securities for redemption, and shall be credited for such purpose by the Trustee at
the price specified in such Securities for redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or
credit of Securities in lieu of cash payments pursuant to this Section 11.2, the principal amount
of Securities of such Series to be redeemed in order to exhaust the aforesaid cash payment shall be
less than $100,000, the Trustee need not call Securities of such Series for redemption, except upon
receipt of a Company Order that such action be taken, and such cash payment shall be held by the
Trustee or a Paying Agent and applied to the next succeeding sinking fund payment,
provided, however, that the Trustee or such Paying Agent shall from time to time
upon receipt of a Company Order pay over and deliver to the Company any cash payment so being held
by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of
that Series purchased by the Company having an unpaid principal amount equal to the cash payment
required to be released to the Company.



     Section 11.3. Redemption of Securities for Sinking Fund.



     Not less than 45 days (unless otherwise indicated in the Board Resolution, supplemental
indenture hereto or Officers’ Certificate in respect of a particular Series of Securities) prior to
each sinking fund payment date for any Series of Securities, the Company will deliver to the
Trustee an Officers’ Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that Series pursuant to the terms of that Series, the portion thereof, if any, which is
to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting of Securities of that Series pursuant to Section 11.2, and the optional
amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the
Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days
(unless otherwise indicated in the Board Resolution, Officers’ Certificate or supplemental
indenture in respect of a particular Series of Securities) before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 3.2 and cause notice of the redemption thereof
to be given in the name of and



33









 







at the expense of the Company in the manner provided in Section 3.3. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and in the manner stated
in Sections 3.4, 3.5 and 3.6.



     IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.



	 	 	 	 	 
	 	SILVERLEAF RESORTS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Its: 	 
	 
	 	[Name of Trustee]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Its: 	 
	 



358613.2

34