EX-4.1 Form of Indenture



 







Exhibit 4.1




 





LEVITT CORPORATION




AND




U.S. BANK NATIONAL ASSOCIATION,

Trustee




INDENTURE




Dated as of ___, 2006




$200,000,000




Subordinated Investment Notes




 






 









 









TABLE OF CONTENTS




	 	 	 	 	 	 	 
	ARTICLE I

	 	Definitions and Other Provisions of General Application
	 	 	1	 
	     SECTION 1.1

	 	Definitions
	 	 	1	 
	     SECTION 1.2

	 	Compliance Certificates and Opinions
	 	 	6	 
	     SECTION 1.3

	 	Form of Documents Delivered to Trustee
	 	 	7	 
	     SECTION 1.4

	 	Action by Holders
	 	 	7	 
	     SECTION 1.5

	 	Notices, etc., to Trustee and Company
	 	 	8	 
	     SECTION 1.6

	 	Notices to Holders; Waiver
	 	 	9	 
	     SECTION 1.7

	 	Conflict with Trust Indenture Act
	 	 	9	 
	     SECTION 1.8

	 	Effect of Headings and Table of Contents
	 	 	10	 
	     SECTION 1.9

	 	Successors and Assigns
	 	 	10	 
	     SECTION 1.10

	 	Separability Clause
	 	 	10	 
	     SECTION 1.11

	 	Benefits of Indenture
	 	 	10	 
	     SECTION 1.12

	 	Legal Holidays
	 	 	10	 
	     SECTION 1.13

	 	Governing Law
	 	 	10	 
	ARTICLE II

	 	The Investment Notes
	 	 	10	 
	     SECTION 2.1

	 	General Terms of Investment Notes
	 	 	10	 
	     SECTION 2.2

	 	Confirmation Statement
	 	 	12	 
	     SECTION 2.3

	 	Registrar and Paying Agent
	 	 	13	 
	     SECTION 2.4

	 	Transfer and Exchange
	 	 	13	 
	     SECTION 2.5

	 	Payment of Interest and Principal; Interest and Principal Rights Preserved
	 	 	14	 
	     SECTION 2.6

	 	Defaulted Interest
	 	 	15	 
	     SECTION 2.7

	 	Book-Entry Registration
	 	 	15	 
	     SECTION 2.8

	 	Periodic Statements
	 	 	16	 
	     SECTION 2.9

	 	Mutilated, Destroyed, Lost and Stolen Investment Notes
	 	 	16	 
	     SECTION 2.10

	 	Holder Lists
	 	 	17	 
	     SECTION 2.11

	 	Cancellation
	 	 	17	 
	     SECTION 2.12

	 	Execution, Authentication and Delivery
	 	 	17	 
	ARTICLE III

	 	Covenants
	 	 	18	 
	     SECTION 3.1

	 	Payment of Principal and Interest
	 	 	18	 
	     SECTION 3.2

	 	Maintenance of Office or Agency
	 	 	18	 
	     SECTION 3.3

	 	Money for Investment Note Payments to be Held in Trust
	 	 	18	 
	     SECTION 3.4

	 	Intentionally Omitted
	 	 	20	 
	     SECTION 3.5

	 	Maintenance of Properties
	 	 	20	 
	     SECTION 3.6

	 	Statement as to Compliance
	 	 	20	 
	     SECTION 3.7

	 	Corporate Existence
	 	 	20	 
	     SECTION 3.8

	 	Restrictions on Dividends, Redemptions and Other Payments
	 	 	21	 
	ARTICLE IV

	 	Holders’ Lists and Reports by the Trustee and the Company
	 	 	21	 
	     SECTION 4.1

	 	Company to Furnish Trustee Names and Addresses of Holders
	 	 	21	 
	     SECTION 4.2

	 	Preservation of Information; Communications to Holders
	 	 	21	 
	     SECTION 4.3

	 	Reports by Trustee
	 	 	21	 
	     SECTION 4.4

	 	Reports by Company
	 	 	22	 






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	ARTICLE V

	 	Remedies
	 	 	23	 
	     SECTION 5.1

	 	Events of Default
	 	 	23	 
	     SECTION 5.2

	 	Acceleration of Maturity; Rescission and Annulment
	 	 	24	 
	     SECTION 5.3

	 	Suits for Enforcement by Trustee
	 	 	24	 
	     SECTION 5.4

	 	Trustee May File Proofs of Claim
	 	 	24	 
	     SECTION 5.5

	 	Trustee May Enforce Claims Without Possession of Investment Notes
	 	 	25	 
	     SECTION 5.6

	 	Application of Money Collected
	 	 	25	 
	     SECTION 5.7

	 	Limitation on Suits
	 	 	26	 
	     SECTION 5.8

	 	Unconditional Right of Holders to Receive Principal and Interest
	 	 	27	 
	     SECTION 5.9

	 	Restoration of Rights and Remedies
	 	 	27	 
	     SECTION 5.10

	 	Rights and Remedies Cumulative
	 	 	27	 
	     SECTION 5.11

	 	Delay or Omission Not A Waiver
	 	 	27	 
	     SECTION 5.12

	 	Control by Holders
	 	 	27	 
	     SECTION 5.13

	 	Waiver of Past Defaults
	 	 	28	 
	     SECTION 5.14

	 	Undertaking for Costs
	 	 	28	 
	     SECTION 5.15

	 	Waiver of Stay or Extension Laws
	 	 	28	 
	ARTICLE VI

	 	The Trustee
	 	 	29	 
	     SECTION 6.1

	 	Certain Duties and Responsibilities
	 	 	29	 
	     SECTION 6.2

	 	Notice of Defaults
	 	 	30	 
	     SECTION 6.3

	 	Certain Rights of Trustee
	 	 	30	 
	     SECTION 6.4

	 	Not Responsible for Recitals or Issuance of Investment Notes
	 	 	31	 
	     SECTION 6.5

	 	May Hold Investment Notes
	 	 	32	 
	     SECTION 6.6

	 	Money Held in Trust
	 	 	32	 
	     SECTION 6.7

	 	Compensation and Reimbursement
	 	 	32	 
	     SECTION 6.8

	 	Corporate Trustee Required; Eligibility; Disqualification
	 	 	32	 
	     SECTION 6.9

	 	Resignation and Removal; Appointment of Successor
	 	 	33	 
	     SECTION 6.10

	 	Acceptance of Appointment by Successor
	 	 	34	 
	     SECTION 6.11

	 	Merger, Conversion, Consolidation or Succession to Business of Trustee
	 	 	35	 
	     SECTION 6.12

	 	Preferential Collection of Claims against Company
	 	 	35	 
	ARTICLE VII

	 	Supplemental Indentures
	 	 	35	 
	     SECTION 7.1

	 	Supplemental Indentures Without Consent of Holders
	 	 	35	 
	     SECTION 7.2

	 	Supplemental Indentures With Consent of Holders
	 	 	36	 
	     SECTION 7.3

	 	Execution of Supplemental Indentures
	 	 	37	 
	     SECTION 7.4

	 	Effect of Supplemental Indentures
	 	 	37	 
	     SECTION 7.5

	 	Conformity with Trust Indenture Act
	 	 	38	 
	     SECTION 7.6

	 	Notation on or Exchange of Investment Notes
	 	 	38	 
	     SECTION 7.7

	 	Subordination Unimpaired
	 	 	38	 
	ARTICLE VIII

	 	Consolidation, Merger, Conveyance, Transfer or Lease
	 	 	38	 
	     SECTION 8.1

	 	Company May Consolidate, etc., Only on Certain Terms
	 	 	38	 
	     SECTION 8.2

	 	Successor Corporation Substituted
	 	 	39	 






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	ARTICLE IX

	 	Discharge of Indenture
	 	 	39	 
	     SECTION 9.1

	 	Termination of Company’s Obligations
	 	 	39	 
	     SECTION 9.2

	 	Application of Trust Money
	 	 	40	 
	     SECTION 9.3

	 	Repayment to Company
	 	 	40	 
	     SECTION 9.4

	 	Reinstatement
	 	 	41	 
	ARTICLE X

	 	Subordination of Investment Notes
	 	 	41	 
	     SECTION 10.1

	 	Subordination
	 	 	41	 
	     SECTION 10.2

	 	Distribution of Assets, etc
	 	 	41	 
	     SECTION 10.3

	 	Subrogation
	 	 	43	 
	     SECTION 10.4

	 	Obligation of the Company Unconditional
	 	 	43	 
	     SECTION 10.5

	 	Payments on Investment Notes Permitted
	 	 	44	 
	     SECTION 10.6

	 	Effectuation of Subordination by Trustee
	 	 	44	 
	     SECTION 10.7

	 	Knowledge of Trustee
	 	 	44	 
	     SECTION 10.8

	 	Trustee May Hold Senior Indebtedness
	 	 	44	 
	     SECTION 10.9

	 	Rights of Holders of Senior Indebtedness Not Impaired
	 	 	44	 
	     SECTION 10.10

	 	Alteration of Senior Indebtedness
	 	 	44	 
	     SECTION 10.11

	 	Article Applicable to Paying Agents
	 	 	45	 
	     SECTION 10.12

	 	Trustee Not Fiduciary for Holders of Senior Indebtedness
	 	 	45	 
	ARTICLE XI

	 	Redemption
	 	 	45	 
	     SECTION 11.1

	 	Redemption at the Company=s Option
	 	 	45	 
	     SECTION 11.2

	 	Notices to Trustee
	 	 	45	 
	     SECTION 11.3

	 	Selection of Investment Notes to be Redeemed
	 	 	45	 
	     SECTION 11.4

	 	Notice of Redemption
	 	 	46	 
	     SECTION 11.5

	 	Effect of Notice of Redemption
	 	 	46	 
	     SECTION 11.6

	 	Deposit of Redemption Price
	 	 	47	 
	     SECTION 11.7

	 	Investment Notes Redeemed in Part
	 	 	47	 
	     SECTION 11.8

	 	Repurchasing of Investment Notes
	 	 	47	 
	     SECTION 11.9

	 	Redemption at the Election of Holder upon Death or Total Permanent Disability
	 	 	47	 
	ARTICLE XII
     SECTION 12.1

	 	Immunity of Directors, Officers, Employees and Stockholders

Exemption from Individual Liability
	 	 	48

48	 
	ARTICLE XIII

	 	Investment Notes in Definitive Form
	 	 	49	 
	     SECTION 13.1

	 	Forms Generally
	 	 	49	 






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     THIS INDENTURE, dated as of ___, 2006, by and between Levitt Corporation, a
corporation duly organized and existing under the laws of the State of Florida (“the Company”), and
U.S. Bank National Association, a national banking association, as trustee (the “Trustee”).



     The Company and the Trustee agree as follows for the benefit of each other and for the equal
and ratable benefit of the Holders of the unsecured Subordinated Investment Notes of the Company
issued pursuant to the Company’s Registration Statement on Form S-3 declared effective by the
Securities and Exchange Commission on or about ___, 2006:



ARTICLE I

Definitions and Other Provisions of General Application




     SECTION 1.1. Definitions.



     For all purposes of this Indenture and of any indenture supplemental hereto, except as
otherwise expressly provided or unless the context otherwise requires:




     (1) the terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular;




     (2) the term “this Indenture” means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof;




     (3) all other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;




     (4) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles in effect on the date of
execution of this Indenture; and




     (5) all references in this instrument to designated “Articles”, “Sections” and other
subdivisions are to the designated Articles, Sections and other subdivisions of this
instrument as originally executed; the words “herein”, “hereof” and “hereunder” and other
words of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;



     “Account” means the record of beneficial ownership of an Investment Note maintained by the
Company.



     “Act” when used with respect to any Holder has the meaning specified in Section 1.4.



     “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



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purposes of this definition, “control” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”) when used with respect to any
specified Person means the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or otherwise.




     “Authorized Newspaper” means a newspaper of general circulation in the relevant area, printed
in the English language and customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays. Whenever successive weekly publications in an Authorized Newspaper
are required hereunder they may be made (unless otherwise expressly provided herein) on the same or
different days of the week and in the same or different Authorized Newspapers.



     “Board of Directors” means either the board of directors of the Company or any duly authorized
committee of that board.



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



     “Business Day” means each day which is neither a Saturday, Sunday nor other day on which
banking institutions in the State of Florida are authorized by law or required by executive order
to close.



     “Capital Stock” means any and all shares, interests, participation rights or other equivalents
(however designated) of corporate stock.



     “Capitalized Lease Obligation” means any lease obligation of a Person incurred with respect to
any property (whether real, personal or mixed) acquired or leased by such Person and used in its
business that is required to be recorded as a capitalized lease in accordance with generally
accepted accounting principles.



     “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, or if at any time after the execution of this
instrument such Commission is not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties on such date.



     “Company” means Levitt Corporation until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such
successor corporation.



     “Company Request”, “Company Order” and “Company Consent” mean, respectively, a written
request, order or consent signed in the name of the Company by its Chairman of the Board of
Directors, President or a Vice President, and delivered to the Trustee.



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     “Confirmation Statement” has the meaning specified in Section 2.2.



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



     “Defaulted Interest” has the meaning specified in Section 2.6.



     “EDGAR”
means the Commission’s Electronic Data Gathering Analysis
and Retrieval System.


     “Event of Default” has the meaning specified in Section 5.1.



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



     “Holder” means a Person in whose name an Investment Note is registered in the Register.



     “Indebtedness” means (i) all Obligations of the Company for borrowed money (whether or not the
recourse of the lender is to the whole of the assets of the Company or only to a portion thereof),
(ii) all indebtedness of the Company which is evidenced by a note, debenture, bond or other similar
instrument, including Capitalized Lease Obligations, (iii) all indebtedness of the Company
representing the unpaid balance of the purchase price of any goods or other property or balance
owed for any services rendered (but excluding trade accounts payable
or other accrued liabilities arising in the ordinary course of
business), (iv) all indebtedness of the Company, including Capitalized Lease
Obligations incurred, assumed or given in an acquisition (whether by way of purchase, merger or
otherwise) of any business, real property or other assets, (v) any indebtedness of others described
in the preceding clauses (i), (ii), (iii) and (iv) that the Company has guaranteed or for which it
is otherwise liable and (vi) any amendment, renewal, extension, deferral, modification,
restructuring or refunding of any such indebtedness, obligation or guarantee.



     “Interest Accrual Date” means with respect to any Investment Note, the date the Company
accepts funds for the purchase of the Investment Note if such funds are received by 3:00 p.m. (EDT)
on a Business Day, or if such funds are not so received by such time, on the next Business Day.



     “Interest Payment Date” means such date as determined by the Holder and the Company or, if
such day is not a Business Day, the Business Day immediately following such day.



     “Investment Note” or “Investment Notes” means the subordinated investment notes issued and
delivered under this Indenture.



     “Maturity Date” when used with respect to any Investment Note means the date specified in such
Investment Note as the fixed date on which the principal of such Investment Note is due and
payable, as such Maturity Date may be extended or renewed as provided herein.



     “Maturity Record Date” means, with respect to an Investment Note, fifteen (15) days prior to
the Maturity Date or redemption date applicable to such Investment Note.



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     “Obligations” means, with respect to any Indebtedness, any principal, premium, interest,
penalties, fees and other liabilities payable from time to time and obligations performable under
the documentation governing such Indebtedness.



     “Officers’ Certificate” means a certificate signed by the Chairman of the Board of Directors,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.



     “Opinion of Counsel” means a written opinion of counsel, who may, except as otherwise
expressly provided in this Indenture, be counsel for the Company.



     “Outstanding” when used with respect to the Investment Notes means, as of the date of
determination, the outstanding balances of all Accounts representing the Investment Notes
maintained by the Registrar (or, if Accounts are exchanged for fully registered notes in definitive
form pursuant to Section 2.7(b) hereof, then all Investment Notes theretofore authenticated and
delivered under this Indenture) except:




     (i) Investment Notes the principal amount of which is considered paid under Section 3.1
hereof; and




     (ii) Investment Notes for whose payment money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent in trust for the Holders of such
Investment Notes;


provided, however, that in determining whether the Holders of the requisite principal amount of
Investment Notes Outstanding have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Investment Notes owned by the Company or any other obligor upon the
Investment Notes or any Affiliate of the Company or such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent or waiver, only
Investment Notes which the Trustee knows to be so owned shall be so disregarded.




     “Paying Agent” means any Person authorized by the Company to pay the principal of or interest
on any Investment Notes on behalf of the Company. The Company or any of its subsidiaries may act
as Paying Agent.



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



     “Place of Payment” means a city or political subdivision thereof designated as such by the
Company in accordance with the terms of this Indenture.



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     “Principal Corporate Trust Office” means the principal corporate trust office of the Trustee
at the location set forth in Section 1.5 or at such other location as the Trustee may from time to
time designate by written notice to the Company.



     “Redemption Price” means, with respect to any Investment Note to be redeemed, the principal
amount of such Investment Note plus any premium thereon plus the interest accrued but unpaid to the
date of such redemption.



     “Register” and “Registrar” shall have the meanings specified in Section 2.3.



     “Regular Record Date” for the interest payable on any Interest Payment Date means the close of
business on the date fifteen (15) days prior to such Interest Payment Date.



     “Responsible Officer” when used with respect to the Trustee means the chairman or the vice
chairman of the board of directors, the chairman or vice chairman of the executive committee of the
board of directors, the president, any vice-president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller and any assistant controller or any other officer of the
Trustee customarily performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with the particular
subject.



     “Responsible Officer of the Company” shall mean the Chairman or Vice Chairman of the Board of
Directors, the President, any Vice-President, the Treasurer, the Controller or the Secretary of the
Company.



     “Senior Indebtedness” means any and all Indebtedness of the Company (whether outstanding on
the date hereof or hereafter created), except for any particular Indebtedness, which expressly
provides that such Indebtedness shall be subordinate or shall rank pari passu in right of payment
to the Investment Notes. For the avoidance of doubt, Senior Indebtedness does not include the debt securities of the Company
issued under the Indenture, dated March 15, 2005, between the Company and JP Morgan Chase Bank,
National Association, as trustee, the debt securities of the Company issued under the Indenture,
dated April 24, 2005, between the Company and Wilmington Trust Company, as trustee, the debt
securities of the Company issued under the Indenture, dated June 1, 2006, between the Company and
Wilmington Trust Company, as trustee, the debt securities of the Company issued under the
Indenture, dated July 18, 2006, between the Company and Wilmington Trust Company, as trustee or the
debt securities of the Company to be issued under this Indenture. The Investment Notes to be
issued pursuant to this Indenture will rank pari passu in right of payment to the currently
outstanding investment notes of the Company issued under the Indenture, dated October 9, 2003,
between the Company and U.S. Bank National Association, as trustee.



     “Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 2.6.



     “Subsidiary” means, with respect to the Company, any corporation, association or other
business entity of which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the election of
directors, officers or trustees thereof is at the time owned in the aggregate, directly or
indirectly, by the Company and its Subsidiaries.



     “Total Permanent Disability” means a determination by a physician acceptable to the Company
that the Holder of an Investment Note, who was gainfully employed on a full-time basis at the date
of issuance of such Investment Note is unable to work on a full time basis during the succeeding
twenty-four (24) months. For purposes of this definition, “working on a full-time basis”



- 5 -









 




shall
mean working at least forty (40) hours per week. An acceptable physician shall be an unaffiliated
third party with experience in matters related to the condition which resulted in the disability.




     “Trustee” means U.S. Bank National Association, a national banking association, until a
successor Trustee shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter “Trustee” shall mean such successor Trustee.



     “Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939 (15 U.S.C.
''77aaa-77bbbb), as in force at the date as of which this instrument was executed,
except as provided in Section 7.5.



     “U.S. Government Obligations” means direct obligations of the United States of America for the
payment of which the full faith and credit of the United States of America is pledged.



     “Vice President” when used with respect to the Company or the Trustee means any vice
president, whether or not designated by a number or a word or words added before or after the title
“vice president”.



SECTION 1.2 Compliance Certificates and Opinions.




     Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee at the Trustee=s
request an Officers’ Certificate stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion need be furnished.



     Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture shall include:




     (a) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;




     (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;
and




     (c) a statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.



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SECTION 1.3 Form of Documents Delivered to Trustee.




     In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.



     Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which such counsel’s certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of reasonable care should
know, that such certificate or opinion or representations are erroneous.



     Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.



SECTION 1.4 Action by Holders.




     (a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders in person or by agent
or proxy duly appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the
Holders signing such instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.1 and 6.3) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.



     (b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by the certificate of any notary public
or other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or association or a member of a partnership or an
employee of a public or governmental agency on behalf of such corporation, association, partnership
or agency, or by an agent or fiduciary, such certificate or affidavit shall also constitute
sufficient



- 7 -









 




proof of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved in any other manner
which the Trustee deems sufficient.




     (c) The ownership of Investment Notes shall be proved by the Register or by a certificate of
the Registrar thereof.



     (d) At any time prior to the taking of any action by the Holders of the percentage in
aggregate principal amount of the Investment Notes specified in this Indenture in connection with
such action, any Holder which has consented to such action may, by filing written notice with the
Trustee at its Principal Corporate Trust Office and upon proof of holding as provided in this
Section 1.4, revoke such action so far as concerns such Investment Notes. Except as aforesaid, any
request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of
any Investment Note shall be conclusive and binding upon such Holder and upon all future Holders of
such Investment Note and of every Investment Note issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof, in respect of anything done, omitted or suffered to be
done by the Trustee or the Company in reliance thereon, whether or not notation of such action is
made upon such Investment Note. Any action taken by the Holders of the percentage in aggregate
principal amount of the Investment Notes specified in the Indenture in connection with such action
shall be conclusive and binding upon the Company, the Trustee and the Holders of all of the
Investment Notes.



     (e) If the Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other action, the Company may, at its option, by or pursuant
to a Board Resolution, fix in advance a record date for the determination of Holders entitled to
give such request, demand, authorization, direction, notice, consent, waiver or other action, but
the Company shall have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other action may be given before or
after such record date, but only Holders of record at the close of business on such record date
shall be deemed to be the Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Investment Notes have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other action, and for that purpose the
Outstanding Investment Notes shall be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture not later than six
(6) months after the record date.



SECTION 1.5 Notices, etc., to Trustee and Company.




     Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with,




     (1) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if and only if made, given, furnished or filed in writing to or with the



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Corporate
Trust Department of the Trustee at the Principal Corporate Trust Office which at the date of
this Indenture is EP-MN-WS3C, 60 Livingston Avenue, St. Paul, Minnesota 55107, attention:
Richard Prokosch, or




     (2) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder if in writing and mailed, first-class, postage prepaid, to the Company addressed
to it at 2100 West Cypress Creek Road, Ft. Lauderdale, Florida 33309 to the attention of
Alan B. Levan, the Chairman of the Company, with a copy to the Corporate Secretary at 2100
West Cypress Creek Road, Ft. Lauderdale, Florida 33309, or at any other address furnished in
writing to the Trustee by the Company with a copy to Stearns Weaver Miller Weissler Alhadeff
& Sitterson, P.A., 150 West Flagler Street, Miami, Florida 33130, attention: Alison W.
Miller.



SECTION 1.6 Notices to Holders; Waiver.




     Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first
class, postage prepaid, to each Holder affected by such event, at his address as it appears on the
Register, not later than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides
for notice in any manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such waiver.



     In case, by reason of the suspension of or irregularities in regular mail service, it shall be
impractical to mail notice of any event to Holders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.



     In case, by reason of the suspension of publication of any Authorized Newspaper, or by reason
of any other cause, it shall be impossible to make publication of any notice in an Authorized
Newspaper or Authorized Newspapers as required by this Indenture, then such method of
publication or notification as shall be made with the approval of the Trustee shall constitute a
sufficient publication of such notice.



SECTION 1.7 Conflict with Trust Indenture Act.




     This Indenture is subject to the TIA and if any provision hereof limits, qualifies or
conflicts with another provision hereof which is required to be included in this Indenture by any
of the provisions of TIA, such required provision shall control.



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SECTION 1.8 Effect of Headings and Table of Contents.




     The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.



SECTION 1.9 Successors and Assigns.




     All covenants and agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.



SECTION 1.10 Separability Clause.




     In case any provision in this Indenture or in the Investment Notes shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.



SECTION 1.11 Benefits of Indenture.




     Nothing in this Indenture or in the Investment Notes, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder, the holders of Senior
Indebtedness and the Holders of Investment Notes, any benefit or any legal or equitable right,
remedy or claim under this Indenture.



SECTION 1.12 Legal Holidays.




     In any case where the date of an Interest Payment Date or the Maturity Date of any Investment
Note shall not be a Business Day, then (notwithstanding any other provision of the Investment Notes
or this Indenture) payment of the principal of, or interest on, any Investment Notes need not be
made on such date, but may be made on the next succeeding Business Day with the same force and
effect as if made on the nominal date of any such Interest Payment Date or Maturity Date.



SECTION 1.13 Governing Law.




     This Indenture and the Investment Notes issued hereunder shall be controlled, construed and
enforced in accordance with the laws of the State of Florida applicable to contracts made and to
be performed entirely in that State.



ARTICLE II

The Investment Notes




SECTION 2.1 General Terms of the Investment Notes.




     (a) The outstanding aggregate principal amount of Investment Notes outstanding at any time is
limited to $200 million, provided, however, that the Company and the Trustee may, without



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the
consent of any Holder, increase such aggregate principal amount of Investment Notes which may be
outstanding at any time. The Investment Notes may be subject to notations, legends or endorsements
required by law, stock exchange rule, agreements to which the Company is subject or usage.




     (b) The Investment Notes (i) shall not be evidenced by a promissory note, (ii) are
non-negotiable debt instruments and (iii) absent an exchange for fully registered notes in
definitive form pursuant to Section 2.7(b) hereof, shall only be issued in book-entry form. The
record of beneficial ownership of the Investment Notes shall be maintained and updated by the
Company through the establishment and maintenance of Accounts. Each Investment Note shall be in
such denominations as may be designated from time to time by the Company but in no event in an
original denomination less than $5,000. Separate purchases may not be cumulated to satisfy the
minimum denomination requirements.



     (c) The Company shall designate, from time to time upon issuance of Investment Notes, the
term, maturity dated and interest rate provisions of a series of Investment Notes and the term,
maturity date and interest rate of each Investment Note shall be indicated in a prospectus or
supplemental prospectus relating to the offer of the Investment Note. The term, maturity date and
interest rate of each Investment Note shall be confirmed in a Confirmation Statement. The Company,
without affecting the terms of any Outstanding Investment Notes, reserves the right to vary the
interest rate of subsequently issued Investment Notes.



     Each Investment Note shall bear interest from and commencing on its Interest Accrual Date at
its respective designated rate of interest. The interest rate will be fixed for the term of the
Investment Notes upon issuance.



     Interest on an Investment Note shall be simple interest and the Holder thereof may elect to
have interest paid monthly, on the fifteenth day of each calendar month; quarterly, on January 15,
April 15, July 15 and October 15; semi-annually, on January 15 and July 15; annually, on January
15; or upon maturity. A Holder may change this election once during the term of the Investment
Note.
To the extent any applicable interest payment date is not a Business Day, then interest shall
be paid instead on the next succeeding Business Day.



     (d) The Company may elect, at its discretion, to permit the Holder of an Investment Note to
renew its Investment Note for the same term. If the Company determines to permit a Holder to renew
its Investment Note, then the Company shall provide a renewal election notice to such Holder in
writing approximately sixty (60) to ninety (90) days prior to the Maturity Date of such Investment
Note. Upon renewal, the Company will pay to the Holder any interest that would otherwise have been
payable on the Maturity Date, and thereafter interest shall continue to accrue from the first day
of such renewed term. Such Investment Note, as renewed, will continue subject to all of its
provisions, including provisions relating to payment of interest and redemption, and shall retain
the same interest rate established in connection with its original term.



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     (e) At its option, the Company may redeem an Investment Note in whole or in part, at any time
at a redemption price equal to the principal amount of such Investment Note plus the interest
accrued but unpaid to the date of redemption. Investment Notes with a remaining duration of more
than twelve (12) months are subject to early repayment at the election (i) of the Holder upon the
occurrence of a Total Permanent Disability of such Holder (or if such Investment Note is held
jointly, upon the Total Permanent Disability of one of such record Holders), (ii) of a Holder’s
estate after a Holder’s death or (iii) if such Investment Note is held jointly, of a Holder upon
the death of the other joint Holder. Otherwise, Holders will have no right to demand early
repayment. The Company may modify its policy on redemptions after death or Total Permanent
Disability provided that any change in such policy shall not affect any Outstanding Investment
Note.



     (f) The Investment Notes are junior in right of payment to the Company=s existing and
future Senior Indebtedness.



     (g) The Investment Notes are not guaranteed or secured by any lien on any of the
Company=s assets. The Company will not be required to contribute, as a means of repaying the
Investment Notes upon the Maturity Date, funds to a separate fund, such as a sinking fund.



     (h) The terms and provisions contained in the Investment Notes shall constitute, and are
hereby expressly made, a part of this Indenture and to the extent applicable, the Company and the
Trustee, by their execution and delivery of this Indenture, and the Holders by accepting the
Investment Notes, expressly agree to such terms and provisions and to be bound thereby. In case of
a conflict, the provisions of this Indenture shall control.



SECTION 2.2 Confirmation Statement.




     An Investment Note shall not be validly issued until an Account is established by the Company
in the name of the purchaser. Promptly after issuance, a confirmation statement (a “Confirmation
Statement”) confirming the issuance of the Investment Note shall be delivered to the purchaser.



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SECTION 2.3 Registrar and Paying Agent.




     The Company shall maintain (i) an office or agency where Investment Notes may be presented for
registration of transfer or for exchange (“Registrar”) and (ii) an office or agency where
Investment Notes may be presented for payment (“Paying Agent”). The Registrar shall keep a
register (the “Register”) of the Investment Notes and of their transfer and exchange. The Register
shall contain a list of all of the Accounts reflecting the beneficial ownership of the Investment
Notes. The Company may appoint one or more co-registrars and one or more additional paying agents.
The term “Registrar” includes any co-registrar, and the term “Paying Agent” includes any
additional paying agent. The Company may change any Paying Agent or Registrar without prior notice
to any Holder; provided that the Company shall promptly notify the Holders of the name and address
of any Agent not a party to this Indenture. The Company may act as Paying Agent and/or Registrar.
In the event the Company uses any Agent other than the Company or the Trustee, the Company shall
enter into an appropriate agency agreement with such Agent, which agreement shall incorporate the
provisions of the TIA. The agreement shall implement the provisions of this Indenture that relate
to such Agent. The Company shall notify the Trustee of the name and address of any such Agent. If
the Company fails to maintain a Registrar or Paying Agent, or fails to give the foregoing notice,
the Trustee shall act as such, and shall be entitled to appropriate compensation in accordance with
Section 6.7 hereof.



     The Company shall be the initial Registrar and Paying Agent. The Company initially appoints
the Trustee as agent for service of notices and demands in connection with the Investment Notes.
The Company shall act as Paying Agent until such time as the Company gives the Trustee written
notice otherwise.



SECTION 2.4 Transfer and Exchange.




     (a) The Investment Notes are non-negotiable instruments and cannot be transferred without the
prior written consent of the Company, except for involuntary transfers or transfers by operation of
law. Requests to the Company for the transfer of the Accounts maintained for the benefit of the
Holders of the Investment Notes shall be:



          (i) duly executed by the current holder of the Account, as reflected on the Register as of the
date of receipt of such transfer request, or his attorney duly authorized in writing;




          (ii) accompanied by the written consent of the Company to the transfer; and




          (iii) if requested by the Company, an opinion of Holder’s counsel (which counsel shall be
reasonably acceptable to the Company) that the transfer does not violate any applicable securities
laws and/or a signature guarantee.



Upon transfer of an Investment Note, the Company will provide the new registered owner of the
Investment Note with a Confirmation Statement which will evidence the transfer of the Account on
the Company’s records.




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     (b) The Company may assess service charges to a Holder for any registration of transfer or
exchange, and the Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith.



     (c) The Company shall treat the individual or entity listed on each Account maintained by or
on behalf of the Company as the absolute owner of the Investment Note represented thereby for
purposes of receiving payments thereon and for all other purposes whatsoever.



SECTION 2.5 Payment of Interest and Principal; Interest and Principal Rights Preserved.




     (a) Each Investment Note shall bear interest from and commencing on its Interest Accrual Date
at such rate of interest as the Company shall determine from time to time; provided, however, that
the interest rate will be fixed for the term of the Investment Notes upon issuance and shall be
specified in the relevant Confirmation Statement. The Holder of an Investment Note may elect to
have interest paid monthly, quarterly, semi-annually, annually, or upon maturity as specified upon
issuance and confirmed in the Confirmation Statement. To the extent any applicable interest
payment date is not a Business Day, then interest shall be paid instead on the next succeeding
Business Day.



     (b) Each Investment Note shall accrue interest at the rate specified for such Investment Note
and such interest shall be payable on each Interest Payment Date, until the principal thereof
becomes due and payable. Any installment of interest payable on an Investment Note that is caused
to be punctually paid or duly provided for by the Company on the applicable Interest Payment Date
shall be paid to the Holder in whose name such Investment Note is registered in the Register on the
applicable Regular Record Date with respect to the Investment Notes outstanding, by check mailed to
such Holder’s address as it appears in the Register on such Regular Record Date. The payment of
any interest payable in connection with the payment of any principal payable with respect to such
Investment Note on a Maturity Date or redemption date shall be payable as provided below. Any
installment of interest not punctually paid or duly provided for shall be payable in the manner and
to the Holders specified in Section 2.6.



     (c) Each of the Investment Notes shall have a Maturity Date of principal as established at the
time of issuance. The principal of each Investment Note shall be paid in full no later than the
Maturity Date originally indicated in the Confirmation Statement unless the term of such
Investment Note is renewed or extended pursuant to Section 2.1(d) hereof or such Investment Note
becomes due and payable at an earlier date by acceleration, redemption or otherwise.



     (d) The principal payment made on any Investment Note on any Maturity Date (or the Redemption
Price of any Investment Note required to be redeemed), and any accrued interest thereon, shall be
payable on or after the Maturity Date or redemption date therefor at the office or agency of the
Company maintained by it for such purpose or at the office of any Paying Agent for such Investment
Note.



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     (e) Notwithstanding any of the foregoing provisions with respect to payments of principal of
and interest on the Investment Notes, if the Investment Notes have become or been declared due and
payable following an Event of Default, then payments of principal of and interest on the Investment
Notes shall be made in accordance with Article V hereof.



     (f) All computations of interest due with respect to any Investment Note shall be computed as
simple interest on the basis of a 360-day year of twelve 30-day months.



     (g) The Company shall pay the principal and interest on the Investment Notes by check mailed
to each Holder’s address as it appears in the Investment Note Register on the applicable Regular
Record Date.



SECTION 2.6 Defaulted Interest.




     If the Company defaults in a payment of interest on any Investment Note, it shall pay the
defaulted interest plus, to the extent lawful, any interest payable on the defaulted interest
(together, the “Defaulted Interest”), to the Holder of such Investment Note on a subsequent Special
Record Date, which date shall be at the earliest practicable date but in all events at least five
(5) Business Days prior to the payment date, in each case at the rate provided in the Investment
Note. The Company shall, with written notification to the Trustee, fix or cause to be fixed each
such Special Record Date and payment date. At least ten (10) days before any such Special
Record Date, the Company (or the Trustee, in the name of and at the expense of the Company) shall
mail to Holders a notice that states (i) the Special Record Date, (ii) the related payment date and
(iii) the amount of such interest to be paid.



SECTION 2.7 Book-Entry Registration.




     (a) The Registrar shall maintain a book-entry registration and transfer system through the
establishment of Accounts for the benefit of Holders of Investment Notes as the sole method of
recording the ownership and transfer of ownership interests in such Investment Notes. The
registered owners of the Accounts established by the Company in connection with the purchase or
transfer of the Investment Notes shall be deemed to be the Holders of the Investment Notes
outstanding for all purposes under this Indenture. The Company shall promptly notify the Registrar
(if the Registrar is other than the Company) of the acceptance of a subscriber’s order to purchase
an Investment Note and the Company shall credit its book-entry registration and transfer system to
the Account of each Investment Note purchaser, the principal amount of such Investment Note owned
of record by the purchaser. The total amount of any principal and/or interest due and payable to
book-entry owners of the Accounts maintained by the Company as provided in this Indenture shall be
credited to such Accounts by the Company within the time frames provided in this Indenture.



     If the Trustee is not acting as Registrar, the Company shall notify the Trustee no less
frequently than monthly of the establishment of new Accounts and the transfer of existing Accounts.



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     (b) Book-entry interests in the Accounts evidencing ownership of the Investment Notes are
exchangeable for fully registered notes in definitive form in those names as the Company directs
only if:



          (1) the Company, at its option, advises the Trustee in writing of the Company=s election
to terminate the book-entry system; or




          (2) after the occurrence of an Event of Default under the Indenture: (i) Holders aggregating
more than a majority of the Outstanding amount of the Investment Notes advise the Trustee in
writing that the continuation of a book-entry system is no longer in the best interests of such
Holders of the Investment Notes and (ii) the Trustee notifies all Holders of the occurrence of any
such Event of Default and the availability of definitive notes to Holders of the Investment Notes
requesting such notes in definitive form.




     (c) Subject to the exception described above in Section 2.7(b) hereof, the book-entry
interests in the Investment Notes shall not otherwise be exchangeable for fully registered notes in
definitive form.



SECTION 2.8 Periodic Statements.




     The Company shall send each Holder via U.S. mail no later than the thirtieth (30th)
day after each calendar year end in which such Holder had an Outstanding balance in such Holder’s
Account, a statement which indicates as of the calendar year end preceding the mailing: (i) the
balance of such Account of each Investment Note and (ii) any accrued interest.



SECTION 2.9 Mutilated, Destroyed, Lost and Stolen Investment Notes.




     (a) In the event that Investment Notes have been issued in definitive form pursuant to Section
2.7(b) hereof, and if (i) any mutilated Investment Note is surrendered to the Trustee, or if the
Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of
any Investment Note, and (ii) there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Investment Note has been acquired by a bona fide purchaser,
the Company shall execute and upon its request the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Investment Note, a new
Investment Note of like tenor and principal amount, bearing a number not contemporaneously
outstanding.



     (b) In case any such mutilated, destroyed, lost or stolen Investment Note has become or is
about to become due and payable, the Company in its discretion may, instead of issuing a new
Investment Note, pay or authorize the payment of such Investment Note (without surrender thereof
except in the case of a mutilated Investment Note) if the applicant for such payment shall furnish
to the Company such security or indemnity as it may require to save it harmless and, in the case of



- 16 -









 




destruction, loss or theft, evidence to the satisfaction of the Company of the destruction, loss or
theft of such Investment Note and of the ownership thereof.




     (c) Upon the issuance of any new Investment Note under this Section 2.9, 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.



     (d) 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 Investment Notes.



SECTION 2.10 Holder 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 the Holders of the Investment Notes and shall
otherwise comply with TIA'312(a).



SECTION 2.11 Cancellation.




     At any time, the Company may notify the Trustee of the cancellation of Investment Notes and,
in the event fully registered notes in definitive form have been issued pursuant to Section 2.7(b)
hereof, the Company may deliver Investment Notes to the Trustee for cancellation. The Registrar
and the Paying Agent shall forward to the Trustee any Investment Notes in definitive form
surrendered to them for registration of transfer, exchange or payment. The Trustee shall cancel
all Investment Notes surrendered for transfer, exchange, payment, replacement or cancellation and
shall destroy such
canceled Investment Notes (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.



SECTION 2.12 Execution, Authentication and Delivery.




     Investment Notes issued in definitive form pursuant to Section 2.7(b) hereof, bearing the
manual or facsimile signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Investment Notes or did not hold
such offices at the date of such Investment Notes. At any time and from time to time after the
execution and delivery of this Indenture and subject to Section 2.7(b), the Company may deliver
such Investment Notes executed by the Company to the Trustee for authentication, together with a
Company Order of the authentication and delivery of such Investment Notes; and the Trustee shall
authenticate and deliver such Investment Notes as in this Indenture provided and not otherwise.
All Investment Notes shall be dated the date of their authentication. No Investment Note in
definitive form shall be entitled to any benefit under this Indenture or be valid or obligatory for
any purpose, unless there appears on such Investment Note a certificate of authentication executed
by the Trustee;



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and such certificate upon any Investment Note in definitive form shall be
conclusive evidence, and the only evidence, that such has been duly authenticated and delivered
hereunder.




ARTICLE III

Covenants




SECTION 3.1 Payment of Principal and Interest.




     The Company will duly and punctually pay the principal of and interest on the Investment Notes
in accordance with the terms of the Investment Notes and this Indenture. Principal and interest
shall be considered paid on the date due if the Paying Agent, if other than the Company, holds at
least one Business Day before that date money deposited by the Company in immediately available
funds and designated for and sufficient to pay all principal and interest then due; provided,
however, that principal and interest shall not be considered paid within the meaning of this
Section 3.1 if money is held by the Paying Agent for the benefit of holders of Senior Debt pursuant
to the provisions of Article X hereof. Such Paying Agent shall return to the Company, no later
than five (5) days following the date of payment, any money (including accrued interest) that
exceeds such amount of principal and interest paid on the Investment Notes in accordance with this
Section 3.1.



SECTION 3.2 Maintenance of Office or Agency.




     The Company will maintain an office or agency in the Place of Payment where notices and
demands to or upon the Company in respect of the Investment Notes and this Indenture may be
served and where Investment Notes may be surrendered for payment and for registration of
transfer or for exchange. The Company will give prompt written notice to the Trustee of the
location, and of any change in the location, of such office or agency. If at any time the Company
shall fail to maintain such office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, notices and demands may be made or served at the Principal Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive
all such notices, demands, presentations and surrenders.



SECTION 3.3 Money for Investment Note Payments to be Held in Trust.




     If the Company shall at any time act as its own Paying Agent, it will, on or before each due
date of the principal of or interest on any of the Investment Notes, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the principal or interest
so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or failure to so act.



     Whenever
the Company shall have one or more Paying Agents, it will, prior to
10:00 a.m. New York City time on each due date of
the principal of or interest on any of the Investment Notes, deposit with a Paying Agent a sum
sufficient to pay the principal or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such sums, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.



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     The Company will cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will:




     (1) hold all sums held by it for the payment of principal of or interest on the
Investment Notes in trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein provided;




     (2) give the Trustee notice of any default by the Company (or any other obligor upon
the Investment Notes) in the making of any payment of principal or interest; and




     (3) at any time during the continuance of any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.



     The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same terms as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall
be released from all further liability with respect to such money.



     Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or interest on any Investment Note and remaining
unclaimed for two (2) years after such principal or interest has become due and payable, shall be
paid to the Company upon Company Request, or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Investment Note shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to be published once,
in an Authorized Newspaper in the Place of Payment, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than thirty (30) days from the date
of such publication, any unclaimed balance of such money then remaining will be repaid to the
Company.



          The Trustee and the Paying Agent shall promptly pay to the Company upon Company Request any
excess money or securities held by them at any time.





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SECTION
3.4 [Intentionally Omitted].





SECTION 3.5 Maintenance of Properties.




     The Company will, in all material respects, cause all its properties used or useful in the conduct of the business of the Company and its Subsidiaries to
be maintained and kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company from
discontinuing the operation and maintenance of any of its properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business.



SECTION 3.6 Statement as to Compliance.




     The Company will deliver to the Trustee, within one hundred twenty (120) days after the end of
each fiscal year of the Company, a written statement signed by the President or a Vice President
and by the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Controller or an
Assistant Controller of the Company, stating, as to each signatory thereof, that:




     (1) a review of the activities of the Company during such year and of performance under
this Indenture has been made under his or her supervision, and




     (2) to the best of his or her knowledge, based on such review, the Company has
performed and fulfilled all of its obligations under this Indenture throughout such year,
or, if an Event of Default shall have occurred, specifying each such Event of Default known
to the signatory and the nature and status thereof.



     The Company will, so long as any of the Investment Notes are Outstanding, deliver to the
Trustee, forthwith upon becoming aware of any Event of Default, an Officer’s Certificate specifying
such Event of Default.



SECTION 3.7 Corporate Existence.




     Subject to Article VIII, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect the corporate existence, rights (charter and statutory)
and



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franchises of the Company; provided, however, that the Company shall not be
required to preserve any right or franchise of the Company if the Board of
Directors shall determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company.




SECTION 3.8 Restrictions on Dividends, Redemptions and Other Payments.




     The Company shall not declare or pay any dividends on, or purchase, redeem or otherwise
acquire for value, any of its Capital Stock now or hereafter outstanding (other than redemption or
repurchase of the Investment Notes in accordance with the terms of this Indenture) or return any
capital to holders of its Capital Stock as such, or make any distribution of assets to holders of
its Capital Stock as such, unless, on the date of any such dividend declaration (a “Declaration
Date”) or the date of any such purchase, redemption, payment or distribution specified above the
Company is not in default in the payment of interest on the Investment Notes and no Event of
Default has occurred and is continuing.



ARTICLE IV

Holders’ Lists and Reports by the

Trustee and the Company




SECTION 4.1 Company to Furnish Trustee Names and Addresses of Holders.




     The Company shall furnish or cause to be furnished to the Trustee, within ten (10) days after
the end of each quarter during the term of this Indenture and as of such other times as the Trustee
may request in writing, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Investment Notes and the aggregate principal amount outstanding as
of such quarter end; provided, however, that the Company shall not be required to furnish the
Trustee the names and addresses of the Holders of Investment Notes if the Trustee receives such
names and addresses in its capacity as Registrar. The Company shall
otherwise comply with TIA'312(a).



SECTION 4.2 Preservation of Information; Communications to Holders.




     (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names
and addresses of Holders of Investment Notes contained in the most recent list furnished to the
Trustee as provided in Section 4.1 and the names and addresses of Holders of Investment Notes
received by the Trustee at any time that it is acting as Registrar (if so acting). The Trustee may
destroy any list furnished to it as provided in Section 4.1 upon receipt of a new list so
furnished.



     (b) The Trustee shall comply with Section 312(b) of the TIA. The Trustee, the Company, and
any other Person shall have the protection of Section 312(c) of the TIA.





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SECTION 4.3 Reports by Trustee.




     (a) So long as the Investment Notes are Outstanding, within sixty (60) days after May 15 of
each year (the “Reporting Date”), the Trustee shall, if required by Section 313(a) of the TIA,
transmit by mail to the Company and all Holders, as their names and addresses appear in the
Register, a brief report dated as of such Reporting Date that complies with Section 313(a) of the
TIA.



     (b) A copy of each such report shall, at the time of such transmission to the Company and the
Holders, be filed by the Trustee with each securities exchange upon which the Investment Notes are
listed, and also with the Commission. The Company will notify the Trustee when the Investment
Notes are listed on any securities exchange.



SECTION 4.4 Reports by Company.




     The Company will:



          (1) file with the Trustee, within fifteen (15) days after the Company is required to file the
same with the Commission, 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 Commission may from time to time
by rules and regulations prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act (provided, that, if the Company files such annual reports, information, documents or other reports
with the Commission in electronic form pursuant to Regulation S-T of the Commission using the
Commission’s EDGAR system, the Company shall notify the Trustee in the manner prescribed herein of
each such filing and the Trustee is hereby authorized and directed to access the EDGAR system for
purposes of retrieving such annual reports, information, documents or other reports); or, if the Company is not required to
file information, documents or reports pursuant to either of said Sections, then it will file with
the Trustee and the Commission, in accordance with the rules and regulations prescribed from time
to time by the Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in respect of securities
listed and registered on a national securities exchange as may be prescribed from time to time in
such rules and regulations;




          (2) file with the Trustee and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and covenants of this Indenture as
may be required from time to time by such rules and regulations; and




          (3) transmit by mail to all Holders as their names and addresses appear in the Register, such
summaries of any information, documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and regulations prescribed from
time to time by the Commission.




          (4) furnish to the Trustee, not less often than annually, a certificate from the principal
executive officer, principal financial officer or principal accounting officer as to his or her
knowledge of the Company’s compliance with all conditions and covenants set forth in Article III of
this Indenture. For purposes of this paragraph, such compliance shall be determined without regard
to any period of grace or requirement of notice provided under the Indenture.




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ARTICLE V

Remedies




SECTION 5.1 Events of Default.




     “Event of Default”, wherever used herein means any one of the following events, continued for
the period of time, if any, and after the giving of the notice, if any, therein designated,
(whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or
be effected by operation of law pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):




     (1) default in the payment of any interest upon any Investment Note when it becomes due
and payable, and continuance of such default for a period of thirty (30) days; or




     (2) default in the payment of the principal of any Investment Note at its Maturity Date
and continuance of such default for a period of thirty (30) days; or




     (3) default in the performance, or breach, of any material covenant or warranty of the
Company in this Indenture (other than a covenant or warranty a default in the performance or
the breach of which is elsewhere in this Section specifically dealt with), and continuance
of such default or breach for a period of sixty (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 a majority in aggregate principal amount of the
Investment Notes then Outstanding, 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




     (4) the entry of a decree or order by a court having jurisdiction in the premises
adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect of the
Company under the Federal Bankruptcy Act or any other applicable Federal or State law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property, or ordering the winding
up or liquidation of its affairs, and the continuance of any such decree or order unstayed
and in effect for a period of ninety (90) consecutive days; or




     (5) the institution by the Company of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Act or any other similar applicable Federal or State
law, or the consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by the Company in
furtherance of any such action.



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SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.




     If an Event of Default described in paragraphs (1), (2), (4) or (5) of Section 5.1 occurs and
is continuing, then and in every such case the Trustee or the Holders of not less than a majority
in aggregate principal amount of the Investment Notes then Outstanding may declare the principal of
all the Investment Notes to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by the Holders), and upon any such declaration, such principal shall
become immediately due and payable.



     At any time after such a declaration of acceleration 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 Investment Notes then Outstanding,
by written notice to the Company and the Trustee, may rescind and annul such declaration and its
consequences if:



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





          (a) all overdue interest on all Investment Notes;




          (b) the principal of any Investment Notes which have become due otherwise than
by such declaration of acceleration and interest thereon at the rate borne by the
Investment Notes; and




          (c) 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




     (2) all Events of Default, other than the non-payment of the principal of Investment
Notes which have become due solely by such acceleration, have been cured or waived as
provided in Section 5.13.


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




SECTION 5.3 Suits for Enforcement by Trustee.




     If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders 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.





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SECTION 5.4 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 Investment Notes or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the principal of the
Investment Notes 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,




     (1) to file and prove a claim for the whole amount of principal and interest owing and
unpaid in respect of the Investment Notes and to file such other papers or documents as may
be necessary or advisable in order to have the claim 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




     (2) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same;


and any 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 to 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 6.7.




     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 Investment Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any in any such proceeding.



SECTION 5.5 Trustee May Enforce Claims Without Possession of Investment Notes.




     All rights of action and claims under this Indenture or the Investment Notes may be prosecuted
and enforced by the Trustee. The Trustee will retain such enforcement rights without the
possession of any of the Investment Notes or the production thereof in any proceeding relating
thereto. 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 Investment Notes in respect of which such
judgment has been recovered.






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SECTION 5.6 Application of Money Collected.






     Any money collected by the Trustee pursuant to this Article shall, subject to Article X, be
applied in the following order, at the date or dates fixed by the Trustee:



     First: To the Trustee for amounts due under Section 6.7;



     Second: To the Holders for amounts then due and unpaid upon the Investment Notes for principal
and interest, 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 Investment Notes for principal and interest, respectively; and



     Third: To the Company.



SECTION 5.7 Limitation on Suits.




     No Holder of any Investment Note 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:




     (1) such Holder has previously given written notice to the Trustee and the Company of a
continuing Event of Default;




     (2) the Holders of not less than a majority in aggregate principal amount of the
Outstanding Investment Notes 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;




     (3) 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;




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




     (5) no direction inconsistent with such written request has been given to the Trustee
during such sixty (60) day period by the Holders of a majority in principal amount of the
Outstanding Investment Notes;


it being understood and intended that no one or more Holders of Investment Notes 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 Holders or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under this Indenture, except
in the manner herein provided and for the equal and ratable benefit of all the Holders of
Investment Notes.




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SECTION 5.8 Unconditional Right of Holders to Receive Principal and Interest.




     Notwithstanding any other provision in this Indenture, the Holder of any Investment Note shall
have the right which is absolute and unconditional to receive payment of the principal of and
interest on such Investment Note on the Maturity Date expressed in any Investment Note, as such
Maturity Date may be renewed in accordance with this Indenture and to institute suit
for the enforcement of any such payment, and such right shall not be impaired without the consent
of such Holder.



SECTION 5.9 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 the
Company, the Trustee and the Holders shall, subject to any determination in such proceeding, 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.



SECTION 5.10 Rights and Remedies Cumulative.




     Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Investment Notes in Section 2.9 hereof, 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 5.11 Delay or Omission Not A Waiver.




     No delay or omission of the Trustee or of any Holder 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 5.12 Control by Holders.




     The Holders of a majority in principal amount of the Outstanding Investment Notes 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, provided that:



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     (1) such direction shall not be in conflict with any rule of law or with this
Indenture; and




     (2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.



SECTION 5.13 Waiver of Past Defaults.




     The Holders of a majority in principal amount of the Outstanding Investment Notes may, on
behalf of the Holders of all the Investment Notes, waive any past default hereunder and its
consequences, except a default:




     (1) in the payment of the principal of or interest on any Investment Note; or




     (2) in respect of a covenant or provision hereof which under Article VII cannot be
modified or amended without the consent of the Holders of each Outstanding Investment Note
affected.



     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 5.14 Undertaking for Costs.




     All parties to this Indenture agree, and each Holder of any Investment Note 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 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 Trustee,
to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than ten
percent (10%) in principal amount of the Outstanding Investment Notes, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of, or interest on, any Investment
Note on or after the Maturity Date expressed in such Investment Note.



SECTION 5.15 Waiver of Stay or Extension Laws.




     The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will
not



- 28 -









 




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 had been enacted.




ARTICLE VI

The Trustee




SECTION 6.1 Certain Duties and Responsibilities.




     (a) Except during the continuance of an Event of Default,




     (1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee, and




     (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the requirements of
this Indenture.



     (b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.



     (c) No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act, or its own willful misconduct,
except that:




     (1) this Subsection shall not be construed to limit the effect of Subsection (a) of
this Section;




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




     (3) the Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the Holders of not less than a
majority in principal amount of the Outstanding Investment Notes relating to the time,
method and place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture; and



- 29 -









 





     (d) no provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it.



     (e) Whether or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.



SECTION 6.2 Notice of Defaults.




     Within ninety (90) days after the occurrence of any default hereunder, the Trustee shall
transmit by mail to all Holders, as their names and addresses appear in the Register, notice of
such default hereunder known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of any default of the character specified in Section
5.1(1) or (2), the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors or Responsible
Officers of the Trustee in good faith determine that the withholding of such notice is in the
interests of the Holders; and provided, further, that in the case of any default of the character
specified in Section 5.1(3), no such notice to Holders shall be given until at least sixty (60)
days after the occurrence thereof. For the purpose of this Section, “default” means any event
which is, or after notice or lapse of time or both would become, an Event of Default.



SECTION 6.3 Certain Rights of Trustee.




     Except as otherwise provided in Section 6.1:




     (1) the Trustee may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, Confirmation Statement, Investment Note or other paper or
document believed by it to be genuine and to have been signed or presented by the proper
party or parties;




     (2) any request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board of Directors
shall be sufficiently evidenced by a Board Resolution;




     (3) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers’ Certificate;



- 30 -









 






     (4) the Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;




     (5) 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 pursuant to
this Indenture, unless such Holders shall have offered to the Trustee reasonable Investment
Note or indemnity against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;




     (6) the Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, Confirmation Statement, Investment Note or other
paper or document but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;




     (7) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;




     (8) the Trustee shall have no duty to inquire as to the performance of the Company’s
covenants in Article III hereof. In addition, the Trustee shall not be deemed to have
knowledge of any Event of Default except any Event of Default of which the Trustee shall
have received written notification or obtained actual knowledge; and




     (9) Delivery of reports, information and documents to the Trustee under Section 4.4 is
for informational purposes only and the Trustee’s receipt of the foregoing shall not
constitute constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of their
covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’
Certificates).



SECTION 6.4 Not Responsible for Recitals or Issuance of Investment Notes.




     The recitals contained herein and in any Investment Notes issued in definitive form pursuant
to Section 2.7(b) hereof, except the certificates of authentication, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this Indenture, the
Confirmation Statements or of the Investment Notes. The Trustee shall not be accountable for the
use or application by the Company of Investment Notes or the proceeds thereof.



- 31 -









 





SECTION 6.5 May Hold Investment Notes.




     The Trustee, any Paying Agent, Registrar or any other agent of the Company, in its individual
or any other capacity, may become the owner or pledgee of Investment Notes and, subject to Sections
6.8 and 6.12, if operative, may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Paying Agent, Registrar or such other agent.



SECTION 6.6 Money Held in Trust.




     Money held by the Trustee in trust hereunder shall be held in a separate interest-bearing
account and such funds shall at all times be segregated from all other funds and assets owned or
held by the Trustee. Any interest on any money received by the Trustee hereunder shall be for the
benefit of the Company and shall be paid to the Company upon Company Request.



SECTION 6.7 Compensation and Reimbursement.




     The Company agrees:




     (1) to pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);




     (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or bad faith; and




     (3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part, arising out of or in
connection
with the acceptance or administration of this trust, including the costs and expenses
of defending itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.



SECTION 6.8 Corporate Trustee Required; Eligibility; Disqualification.




     There shall at all times be a Trustee hereunder which shall be a corporation organized and
doing business under the laws of the United States of America or of any State or Territory or of
the District of Columbia or a corporation or other person permitted to act as Trustee by the
Commission, authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, and subject to supervision or examination by Federal
or State, Territorial or District of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to



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be its combined capital and surplus as set forth in its most
recent report of condition so published. Neither the Company nor any of its Affiliates shall
serve as Trustee hereunder. The Trustee shall be subject to the provisions of Section 310(b) of
the Trust Indenture Act. This Indenture shall always have a Trustee who satisfies the requirements
of Section 310(a)(1) of the Trust Indenture Act.




     If at any time the Trustee shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect hereinafter specified
in this Article.



SECTION 6.9 Resignation and Removal; Appointment of Successor.




     (a) No resignation or removal of the Trustee and no appointment of a successor trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee under Section 6.10.



     (b) The Trustee may resign at any time by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within
thirty (30) days after the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee.



     (c) The Trustee may be removed at any time by Act of the Holders of a majority in principal
amount of the Outstanding Investment Notes, delivered to the Trustee and to the Company.



     (d) If at any time:




     (1) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust
Indenture Act after written request therefor by the Company or by any Holder who has
been a bona fide Holder of an Investment Note or Investment Notes for at least six (6)
months; or




     (2) the Trustee shall cease to be eligible under Section 310(a) of the Trust Indenture
Act and shall fail to resign after written request therefor by the Company or by any such
Holder; or




     (3) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;


then, in any such case, (i) the Company, by a Board Resolution, may remove the Trustee and appoint
a successor trustee, or (ii) subject to the provisions of Section 5.14, any Holder who has been a
bona fide Holder of an Investment Note for at least six (6) months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor trustee.




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     (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee. If, within one (1) year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Investment Notes delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed by the Company or
the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a
bona fide Holder of an Investment Note for at least six (6) months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for the appointment of
a successor Trustee.



     (f) The Company shall give notice of each resignation and each removal of the Trustee and each
appointment of a successor Trustee by mailing written notice of such event by first-class mail,
postage prepaid, to the Holders of Investment Notes as their names and addresses appear in the
Register. Each notice shall indicate the name of the successor Trustee and the address of its
Principal Corporate Trust Office.



SECTION 6.10 Acceptance of Appointment by Successor.




     Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the
registration or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts
and duties of the retiring Trustee; but, on request of the Company or the successor Trustee,
such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee,
and shall duly assign, transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder, subject nevertheless to its lien, if any, provided for in
Section 6.7. Upon request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Trustee all of
such rights, power and trusts.



     No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article VI.



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SECTION 6.11 Merger, Conversion, Consolidation or Succession to Business of Trustee.




     Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article VI, without the
execution or filing of any paper or any further act on the part of any of the parties hereto.



SECTION 6.12 Preferential Collection of Claims against Company.




     The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship listed in Section 311(b) of the Trust Indenture Act. A trustee who has
resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the
extent indicated therein.



ARTICLE VII

Supplemental Indentures




SECTION 7.1 Supplemental Indentures Without Consent of Holders.




     Without the consent of the Holders of any Investment Notes, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following
purposes:




	 	(1)	 	to establish the form or terms of the Investment Notes not
inconsistent with the terms of this Indenture;
	 
	 	(2)	 	to cure any ambiguity, defect or inconsistency;
	 
	 	(3)	 	to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants of the
Company contained herein and in the Investment Notes;
	 
	 	(4)	 	to provide for additional uncertificated or certificated
Investment Notes;
	 
	 	(5)	 	to make any change that does not adversely affect the legal
rights hereunder of any Holder, including but not limited to an increase in the
aggregate dollar amount of Investment Notes which may be outstanding under this
Indenture;
	 
	 	(6)	 	to modify or eliminate the right of the estate of a Holder or a
Holder to cause the Company to redeem an Investment Note upon the death or
Total Permanent Disability of a Holder pursuant to Article XI; provided,
however,




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	 	 	 	that the Company may not modify or eliminate such right, as it may be
in effect on the Issue Date, with respect to any Investment Note which was
issued with such right. After an amendment under this subsection 7.1(6)
becomes effective, the Company may mail to the Holders of each Investment Note
then outstanding a notice briefly describing the amendment; or
	 
	 	(7)	 	to comply with any requirements of the SEC in connection with
the qualification of this Indenture under the TIA.





     The Trustee is hereby authorized to join with the Company in the execution of any such
supplemental indenture, to make any further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee shall not be obligated to, but may in its discretion, enter
into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise.



     Any supplemental indenture authorized by the provisions of this Section 7.1 may be executed by
the Company and the Trustee without the consent of the Holders of any of the Investment Notes at
the time Outstanding, notwithstanding any of the provisions of Section 7.2.



SECTION 7.2 Supplemental Indentures With Consent of Holders.




     With the consent of the Holders of at least a majority in principal amount of the Outstanding
Investment Notes, by Act of said Holders delivered to the Company and the Trustee, the Company,
when authorized by a Board Resolution, and the Trustee may amend this Indenture or the Investment
Notes and enter into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders of the Investment Notes under this
Indenture.



     However, without the consent of the Holder of each Investment Note affected, an amendment or
waiver under this Section 7.2 may not (with respect to any Investment Note held by a nonconsenting
Holder):




	 	(1)	 	reduce the principal amount of Investment Notes whose Holders
must consent to an amendment, supplement or waiver;
	 
	 	(2)	 	reduce the rate of or change the time for payment of interest,
including default interest, on any Investment Note;
	 
	 	(3)	 	reduce the principal of or change the fixed maturity of any
Investment Note or alter the redemption provisions or the price at which the
Company shall offer to purchase such Investment Note;
	 
	 	(4)	 	make any Investment Note payable in money other than U.S.
Dollars;




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	 	(5)	 	make any change in Article X that adversely affects the rights
of any Holders;
	 
	 	(6)	 	waive a Default or Event of Default in the payment of principal
of or interest on, or redemption payment with respect to, any Investment Note
(except a rescission of acceleration of the Investment Notes by the Holders of
at least a majority in aggregate principal amount of the Investment Notes and a
waiver of the payment default that resulted from such acceleration);
	 
	 	(7)	 	modify the provisions of this Section 7.2; or
	 
	 	(8)	 	make any change in Section 5.8 or 5.13 above.





     It shall not be necessary for the consent of the Holders under this Section 7.2 to approve the
particular form of any proposed amendment or waiver, but it shall be sufficient if such consent
approves the substance thereof.



     After an amendment or waiver under this Section 7.2 becomes effective, the Company shall mail
to the Holders of each Investment Note affected thereby a notice briefly describing the amendment
or waiver. Any failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental indenture or waiver.
Subject to Sections 5.8 and 5.13 hereof, the Holders of a majority in principal amount of the
Investment Notes then outstanding may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Investment Notes.



SECTION 7.3 Execution of Supplemental Indentures.




     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 6.1) 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 may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise.



SECTION 7.4 Effect of Supplemental Indentures.




     Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Company and the Holders of
Investment Notes shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and such supplemental indenture shall form a part of
this Indenture for any and all purposes; and every Holder of Investment Notes theretofore or
thereafter issued and delivered thereunder shall be bound thereby.



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SECTION 7.5 Conformity with Trust Indenture Act.




     Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the TIA as then in effect.



SECTION 7.6 Notation on or Exchange of Investment Notes.




     The Company or the Trustee may place an appropriate notation about an amendment or waiver on
any Investment Note, if certificated, or any Account statement. Failure to make any such notation
or issue a new note shall not affect the validity and effect of such amendment or waiver.



SECTION 7.7 Subordination Unimpaired.




     No supplemental indenture executed pursuant to this Article shall affect the superior position
of the holders of Senior Indebtedness with respect to such Investment Notes.



ARTICLE VIII

Consolidation, Merger, Conveyance, Transfer or Lease




SECTION 8.1 Company May Consolidate, etc., Only on Certain Terms.




     The Company shall not consolidate with or merge into any other Person or convey or transfer
its property and assets substantially as an entirety to any Person, unless:




     (1) the Person formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer the properties and assets of the Company
substantially as an entirety shall be a Person organized and existing under the laws of the
United States of America or any State or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of and interest
on all the Investment Notes and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;




     (2) immediately after giving effect to such transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event of Default, shall
have happened and be continuing; and




     (3) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel each stating that such consolidation, merger, conveyance or transfer and
such supplemental indenture comply with this Article VIII and that all conditions precedent
herein provided for relating to such transaction have been complied with.



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SECTION 8.2 Successor Person Substituted.




     Upon any consolidation or merger of the Company into another Person, or any conveyance or
transfer of the properties and assets of the Company substantially as an entirety in accordance
with Section 8.1, the successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance or transfer 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 had been named as the Company herein.




ARTICLE IX

Discharge of Indenture




SECTION 9.1 Termination of Company’s Obligations.




     This Indenture shall cease to be of further effect (except that the Company’s obligations
under Sections 6.7 and 9.4, and the Company’s, Trustee’s and Paying Agent’s obligations under
Section 9.3 shall survive) when all outstanding Investment Notes have been paid in full and the
Company has paid all sums payable by the Company hereunder. In addition, the Company may terminate
all of its obligations under this Indenture if:



     (1) the Company irrevocably deposits in trust with the Trustee or at the option of the
Trustee, with a trustee reasonably satisfactory to the Trustee and the Company under the terms of
an irrevocable trust agreement in form and substance satisfactory to the Trustee, money or U.S.
Government Obligations sufficient (as certified by an independent public accountant designated by
the Company) to pay principal and interest and premium, if any, on the Investment Notes to maturity
or redemption, as the case may be, and to pay all other sums payable by it hereunder, provided that
(i) the trustee of the irrevocable trust shall have been irrevocably instructed to pay such money
or the proceeds of such U.S. Government Obligations to the Trustee and (ii) the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of such U.S. Government Obligations
to the payment of said principal and interest and premium, if any, with respect to the Investment
Notes;



     (2) the Company delivers to the Trustee an Officers’ Certificate stating that all conditions
precedent to satisfaction and discharge of this Indenture have been complied with;



     (3) no Event of Default or event (including such deposit) which, with notice or lapse of time,
or both, would become an Event of Default with respect to the Investment Notes shall have occurred
and be continuing on the date of such deposit; and



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     (4) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that
Holders of the Investment Notes will not recognize income, gain or loss for Federal income tax
purposes as a result of the Company=s exercise of its option under this Section 9.1 and will
be subject to Federal income tax in the same amount, in the same manner and at the same times as
would have been the case if such option had not been exercised;


then, this Indenture shall cease to be of further effect (except as provided in this paragraph),
and the Trustee, on demand of the Company, shall execute proper instruments acknowledging
confirmation of and discharge under this Indenture. The Company may make the deposit only if
Article X hereof does not prohibit such payment. However, the Company’s obligations in Sections
2.3, 2.4, 2.5, 3.2, 3.3, 6.7, 6.9, 9.3 and 9.4 and the Trustee’s and Paying Agent’s
obligations in Section 9.3 shall survive until the Investment Notes are no longer outstanding.
Thereafter, only the Company’s obligations in Section 6.7 and 9.4 and the Company’s, Trustee’s and
Paying Agent’s obligations in Section 9.3 shall survive.




     After such irrevocable deposit made pursuant to this Section 9.1 and satisfaction of the other
conditions set forth herein, the Trustee upon written request shall acknowledge in writing the
discharge of the Company’s obligations under this Indenture except for those surviving obligations
specified above.



     In order to have money available on a payment date to pay principal or interest or premium, if
any, on the Investment Notes, the U.S. Government Obligations shall be payable as to principal or
interest at least one (1) Business Day before such payment date in such amounts as will provide the
necessary money. U.S. Government Obligations shall not be callable at the issuer’s option.



SECTION 9.2 Application of Trust Money.




     The Trustee or a trustee satisfactory to the Trustee and the Company shall hold in trust money
or U.S. Government Obligations deposited with it pursuant to Section 9.1. It shall apply the
deposited money and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal and interest on the Investment Notes.



SECTION 9.3 Repayment to Company.




     The Trustee and the Paying Agent shall promptly pay to the Company upon written request any
excess money or securities held by them at any time.



     The Trustee and the Paying Agent shall pay to the Company upon written request any money held
by them for the payment of principal or interest or premium, if any, that remains unclaimed for two
(2) years after the date upon which such payment shall have become due; provided, however, that the
Company shall have either caused notice of such payment to be mailed to each Holder entitled
thereto no less than thirty (30) days prior to such repayment or within such period shall have
published such notice in an Authorized Newspaper. After payment to the Company, Holders entitled to
the money must look to the Company for payment as general creditors unless an applicable



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abandoned
property law designates another Person, and all liability of the Trustee and such Paying Agent with
respect to such money shall cease.




SECTION 9.4 Reinstatement.




     If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in
accordance with Section 9.2 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 Investment Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section 9.1 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 9.2; provided, however, that if the Company has made any payment of
interest or premium, if any, on or principal of any Investment Note because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of the Holders of such Investment
Notes to receive such payment, as long as no money is owed to the Trustee by the Company, from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.



ARTICLE X

Subordination of Investment Notes




SECTION 10.1 Subordination.




     The Company covenants and agrees, and each Holder of Investment Notes, by his acceptance
thereof, likewise covenants and agrees, that the indebtedness represented by the Investment Notes
and the payment of the principal of and interest on each and all of the Investment Notes is
expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment
to the prior payment in full of all Senior Indebtedness, and that the subordination is for the
benefit of the holders of Senior Indebtedness.



SECTION 10.2 Distribution of Assets, etc.




     No payment on account of principal of or interest or premium, if any, on the Investment Notes
shall be made, and no Investment Notes shall be purchased or otherwise acquired, and no funds shall
be set aside for the purchase of any Investment Notes, either directly or indirectly, by the
Company, if a default in the payment of the principal of or premium, if any, or interest on any
Senior Indebtedness shall have occurred and continued beyond any applicable period of grace so as
to entitle the holder of such Senior Indebtedness to accelerate its maturity, unless and until such
default shall have been cured or waived or shall have ceased to exist or moneys for the payment
thereof shall have been duly set aside.



     In the event of any distribution of assets of the Company upon any dissolution, winding up,
total or partial liquidation, or reorganization of the Company, whether in bankruptcy, insolvency
or receivership proceedings, or upon any assignment for the benefit of creditors or any other
marshaling of the assets and liabilities of the Company, or otherwise,



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          (1) all of the principal of and premium, if any, and interest on all Senior Indebtedness shall
first be paid in full or moneys for the full payment thereof shall have been duly set aside before
any payment is made upon the principal of or interest or premium, if any, on any Investment Note,
and




          (2) any payment or distribution of assets or securities of the Company of any kind or
character, whether in cash, property or securities (other than securities of the Company as
reorganized or readjusted, or securities of the Company or of any other corporation provided for by
a
plan of reorganization or readjustment, the payment of which is subordinated to the payment of
all principal of and premium, if any, and interest on such Senior Indebtedness as may at the time
be outstanding and to any securities issued in respect thereof under any such plan of
reorganization or readjustment, provided that the obligations represented by all notes or other
evidences of Senior Indebtedness are assumed by the new corporation, if any, resulting from any
such reorganization or readjustment and provided further that the rights of the holders of Senior
Indebtedness are not, without the consent of such holders, altered by such reorganization or
readjustment), to which the Holders would be entitled except for the provisions of this Article,
shall be paid by the liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, to
the holders of Senior Indebtedness (pro rata to each such holder on the basis of the respective
amounts of Senior Indebtedness held by such holder) or their representatives, to the extent
necessary to pay the principal of and premium, if any, and interest on all Senior Indebtedness in
full, after giving effect to any concurrent payment or distribution to the holders of Senior
Indebtedness, before any payment or distribution is made to the Holders or to the Trustee.




     If the payment of principal of and any interest on the Investment Notes is accelerated because
of an Event of Default, no payment on account of principal of or interest on the Investment Notes
shall be made until all of the principal of and premium, if any, and interest on all Senior
Indebtedness has been paid in full or due provision has been made for such payment.



     In the event that, notwithstanding the foregoing, any payment or distribution of any character
on any Investment Note, whether in cash, securities or other property (other than securities of the
Company as reorganized or readjusted, or securities of the Company or of any other corporation
provided for by a plan of reorganization or readjustment, the payment of which is subordinated to
the payment of all principal of and premium, if any, and interest on such Senior Indebtedness as
may at the time be outstanding and to any securities issued in respect thereof under any such plan
of reorganization or readjustment provided that the obligations represented by all notes or other
evidences of Senior Indebtedness are assumed by the new corporation, if any, resulting from any
such reorganization or readjustment and provided further that the rights of the holders of Senior
Indebtedness are not, without the consent of such holders, altered by such reorganization or
readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms
hereof, such payment or distribution or Investment Note shall be received in trust for the benefit
of, and shall be paid over or delivered and transferred to, the holders of the Senior Indebtedness
at the time outstanding in accordance with priorities then existing among such holders for
application to the



- 42 -









 




payment of all Senior Indebtedness remaining unpaid, to the extent necessary to
pay all such Senior Indebtedness in full. In the event of the failure of the Trustees or any
Holder to endorse or assign any such payment, distribution or Investment Note, each holder of
Senior Indebtedness is hereby irrevocably authorized to endorse or assign the same.




SECTION 10.3 Subrogation.




     Subject to the payment in full of all Senior Indebtedness, the Holders shall be subrogated
(equally and ratably with the holders of all indebtedness of the Company which, by its express
terms, ranks on a parity with the Investment Notes and is entitled to like rights of subrogation)
to the rights of the holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Indebtedness until all amounts owing
on the Investment Notes shall be paid in full, and, as between the Company, its creditors other
than holders of Senior Indebtedness, and the Holders, no such payment or distribution made to the
holders of Senior Indebtedness by virtue of this Article which otherwise would have been made to
the Holders, shall be deemed to be a payment by the Company on account of the Senior Indebtedness,
it being understood that the provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.



SECTION 10.4 Obligation of the Company Unconditional.




     Nothing contained in this Article or elsewhere in this Indenture or in the Investment Notes is
intended to or shall impair, as between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders the principal of and interest and premium, if any, on the Investment Notes as
and when the same shall become due and payable in accordance with their terms, or affect the
relative rights of the Holders and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or any Holder from
exercising all remedies otherwise permitted by applicable law upon an Event of Default under this
Indenture, subject to the rights, if any, under this Article of the holders of Senior Indebtedness
in respect of cash, property or securities of the Company received upon the exercise of any such
remedy.



     Upon any payment or distribution of assets of the Company referred to in this Article, the
Trustee and the Holders shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which any such dissolution, winding up, liquidation or reorganization
proceeding affecting the affairs of the Company is pending and the Trustee, subject to the
provisions of Section 6.1, and the Holders shall be entitled to rely upon a certificate of the
liquidating trustee or agent or other person making any payment or distribution to the Trustee or
to the Holders for the purpose of ascertaining the persons entitled to participate in such payment
or distribution, the holders of Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount paid or distributed thereon, and all other facts
pertinent thereto or to this Article.



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SECTION 10.5 Payments on Investment Notes Permitted.




     Nothing contained in this Article or elsewhere in this Indenture or in any of the Investment
Notes shall affect the obligation of the Company to make, or prevent the Company from making,
payment of the principal of or interest or premium, if any, on the Investment Notes in accordance
with the provisions hereof, except as otherwise provided in this Article.



SECTION 10.6 Effectuation of Subordination by Trustee.




     Each Holder of Investment Notes, by his acceptance thereof, authorizes and directs the Trustee
on his behalf to take such action at the request of the Company as may be necessary or appropriate
to effectuate the subordination provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes.



SECTION 10.7 Knowledge of Trustee.




     Notwithstanding the provisions of this Article or any other provisions of this Indenture, but
subject to the provisions of Section 6.1, the Trustee shall not be charged with knowledge of the
existence of any facts which would prohibit the making of any payment of moneys to or by the
Trustee, or the taking of any other action by the Trustee under this Article X, unless and until
the Trustee shall have received written notice thereof, in the manner required by Section 1.5, from
the Company, any Holder, any Paying Agent, any Registrar or the holder or representative of any
class of Senior Indebtedness.



SECTION 10.8 Trustee May Hold Senior Indebtedness.




     The Trustee shall be entitled to all the rights set forth in this Article with respect to any
Senior Indebtedness at the time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in Section 6.12 or elsewhere in this Indenture shall deprive the Trustee
of any of its rights as such holder.



SECTION 10.9 Rights of Holders of Senior Indebtedness Not Impaired.




     No right of any present or future holder of any Senior Indebtedness to enforce the
subordination herein shall at any time or in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any non-compliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof any such holders
may have or be otherwise charged with.



SECTION 10.10 Alteration of Senior Indebtedness.




     The Holders of any Senior Indebtedness may extend, renew, modify or amend the terms of such
Senior Indebtedness or any Investment Note therefor and may release, sell or exchange such
Investment Note and otherwise deal freely with the Company, all without notice to or consent of the



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Holders and without affecting the liabilities and obligations of the Company, the Trustee or the
Holders under this Indenture or the Investment Notes.




SECTION 10.11 Article Applicable to Paying Agents.




     In case at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term “Trustee” as used in this Article shall in such case
(unless the context shall otherwise require) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named
in this Article in addition to or in place of the Trustee, provided, however, that Sections 10.7,
10.8, and 10.10 shall not apply to the Company if it acts as Paying Agent.



SECTION 10.12 Trustee Not Fiduciary for Holders of Senior Indebtedness.




     The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if the Trustee shall in good faith
mistakenly pay over or distribute to Holders of Investment Notes or to the Company or to any other
person cash, property or securities to which any holders of Senior Indebtedness shall be entitled
by virtue of this Article X or otherwise.



ARTICLE XI

Redemption




SECTION 11.1 Redemption of Investment Notes.




     The Company may redeem, in whole or in part, any Investment Note at any time and from time to
time, in accordance with any notice requirement provided in Sections 11.2 and 11.4 hereof and at a
Redemption Price equal to the principal amount of such Investment Note plus interest accrued but
unpaid to the redemption date.



SECTION 11.2 Notices to Trustee.




     If the Company elects to redeem Investment Notes pursuant to Section 11.1 hereof, it shall
furnish to the Trustee, at least thirty (30) days but not more than sixty (60) days before a
redemption
date, an Officers’ Certificate setting forth the redemption date, the principal amount of
Investment Notes to be redeemed and the redemption price.



SECTION 11.3 Selection of Investment Notes to be Redeemed.




     If less than all of the Investment Notes are to be redeemed, the Company shall select the
Investment Notes to be redeemed or, if the Company does not do so, the Trustee shall select the
Investment Notes to be redeemed among the Holders of the Investment Notes pro rata or in accordance
with a method the Trustee considers fair and appropriate (and in such manner as complies with
applicable legal and stock exchange requirements, if any). In the event of partial



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redemption by
lot, the particular Investment Notes to be redeemed shall be selected, unless otherwise provided
herein, not less than thirty (30) nor more than sixty (60) days prior to the redemption date by the
Trustee from the outstanding Investment Notes not previously called for redemption.




     The Trustee shall promptly notify the Company in writing of the Investment Notes selected for
redemption and, in the case of any Investment Note selected for partial redemption, the principal
amount thereof to be redeemed.



SECTION 11.4 Notice of Redemption.




     At least thirty (30) days but not more than sixty (60) days before a redemption date, the
Company shall mail a notice of redemption to each Holder whose Investment Notes are to be redeemed.



     The notice shall identify the Investment Notes to be redeemed and shall state:



          (1) the redemption date;




          (2) the Redemption Price;




          (3) if any Investment Note is being redeemed in part, the portion of the principal amount of
such Investment Note to be redeemed and that, after the redemption date, an appropriate adjustment
will be made to such Holder’s Account or, if such Investment Note was in definitive form,
upon surrender of such Investment Note, a new Investment Note or Investment Notes in principal
amount equal to the unredeemed portion will be issued;




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




          (5) any Investment Notes in definitive form that were called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price; and




          (6) that interest on Investment Notes called for redemption ceases to accrue on and after the
redemption date.




     At the Company’s request, the Trustee shall give the notice of redemption in the Company’s
name and at its expense; provided, however, that the Company shall deliver to the
Trustee, at least thirty-five (35) days (or such fewer days as the Trustee may agree) prior to the
redemption date, an Officers’ Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding paragraph.



SECTION 11.5 Effect of Notice of Redemption.




     Once
notice of redemption is mailed to Holders pursuant to
Section 11.4, Investment Notes called for redemption become due and
payable on the redemption date at the Redemption Price.



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SECTION 11.6 Deposit of Redemption Price.




     The Company shall deposit with the Trustee
or with the Paying Agent prior to 10:00 a.m. on the redemption date money sufficient to pay the Redemption Price of all Investment Notes to be
redeemed on that date. The Trustee or the Paying Agent shall return to the Company any money not
required for that purpose.



     If the Company complies with the preceding paragraph, interest on the Investment Notes to be
redeemed will cease to accrue on the applicable redemption date. If any Investment Notes called
for redemption shall not be so paid upon surrender for redemption because of the failure of the
Company to comply with the preceding paragraph, interest will be paid
when due on the unpaid principal, from
the redemption date until such principal is paid, and on any interest not paid on such unpaid
principal, in each case at the rate provided in the Investment Notes and in Sections 2.1 and 2.5
hereof.



SECTION 11.7 Investment Notes Redeemed in Part.




     An appropriate adjustment will be made to the Account of a Holder when an Investment Note is
redeemed in part. In the case of definitive Investment Notes redeemed in part, upon surrender of
such Investment Note, the Company shall issue and the Trustee shall authenticate for the Holder at
the expense of the Company a new Investment Note equal in principal amount to the unredeemed
portion of the Investment Note surrendered.



SECTION 11.8 Repurchasing of Investment Notes.




     Nothing herein shall prohibit the Company from repurchasing from time to time all or any
portion of the Investment Notes in privately negotiated transactions.



SECTION 11.9 Redemption of Investment Notes at the Election of Holder upon Death or Total
Permanent Disability.




     Except as set forth in this Section 11.9, a Holder shall have no right to cause the Company to
redeem an Investment Note prior to the Maturity Date of such Investment Note. However, upon the
death or Total Permanent Disability of a Holder of an Investment Note, the estate of such Holder
(in the event of death) or such Holder (in the event of Total Permanent Disability) may require the
Company to redeem, in whole and not in part, the Investment Note held by such Holder provided that
such Investment Note has a remaining maturity of greater than twelve (12) months at the time of
such death or Disability by delivering to the Company an irrevocable election (a “Redemption
Election”) requiring the Company to make such redemption. In the event an Investment Note is held
jointly by two or more Persons, such Investment Note shall be subject to the elective redemption
provisions of this Article XI upon the death or Total Permanent Disability of either joint Holder.
Upon receipt of a Redemption Election, the Company shall designate the redemption date for such
Investment Note, which redemption date shall be no more than fifteen (15) days after (i) in the
event of death, the



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Company=s receipt of the Redemption Election or (ii) in the event of
Total Permanent Disability, the determination of Total Permanent Disability, and shall pay the
Redemption Price to the estate of the Holder or the Holder, as the case may be. The Redemption
Price payable with respect to a redemption pursuant to this Section 11.9 shall be the principal
amount of such redeemed Investment Note plus the interest accrued but unpaid to the date of
redemption. No interest shall accrue on an Investment Note to be redeemed under this Article XI
for any period of time after the redemption date for such Investment Note provided the Company has
tendered the Redemption Price to the Estate of the Holder or to the Holder, as the case may be.




ARTICLE XII

Immunity of Directors, Officers, Employees and Stockholders




SECTION 12.1 Exemption from Individual Liability.




     No Affiliate, officer, director, employee or stockholder, as such, of the Company, or its
Subsidiaries, shall have any liability for any obligations of the Company under the Investment
Notes or this Indenture or for any claim based on, in respect of or by reason of such obligations
or their creation. Each Holder by accepting an Investment Note hereby expressly waives and
releases all such liability. The waiver and release are part of the consideration for the issue of
the Investment Notes.



     This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.



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ARTICLE XIII

Investment Notes in Definitive Form




SECTION 13.1 Forms Generally.




     The Investment Notes are non-negotiable debt instruments and shall be issued only in
book-entry form. However, in the event of an exchange of the Investment Notes for fully registered
notes in definitive form pursuant to Section 2.7(b) hereof, the Investment Notes shall be in such
form and contain the terms of such Investment Notes, including without limitation those terms set
forth in Article II hereof, and any other provisions as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon, as may be required to comply with the rules of any securities
exchange, or as may, consistent herewith, be determined by the officers executing such Investment
Notes, as evidenced by their execution of the Investment Notes. Any such Investment Notes in
definitive form shall contain a certificate of authentication in such form as the Trustee and the
Company shall determine. Any portion of the text of any Investment Note may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the Investment Note. The
definitive Investment Notes shall be printed, lithographed or engraved on steel engaged borders or
may be produced in any other manner, all as determined by the officers executing such Investment
Notes as evidenced by their execution of such Investment Notes.



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



	 	 	 	 	 
	 	 	LEVITT CORPORATION
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name: Alan B. Levan

Title: Chairman of the Board of Directors
	 
	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION,

as Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:

Title:






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