exv4w2






EXHIBIT 4.2



 

 




COEUR D’ALENE MINES CORPORATION




SENIOR DEBT SECURITIES




 



INDENTURE




DATED AS OF ___________, 20__




__________,




TRUSTEE




 

 




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE	 	 	1	 
	 
	 	Section 1.01.	 	Definitions	 	 	1	 
	 
	 	Section 1.02.	 	Other Definitions	 	 	3	 
	 
	 	Section 1.03.	 	Incorporation by Reference of Trust Indenture Act	 	 	4	 
	 
	 	Section 1.04.	 	Rules of Construction	 	 	4	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE TWO THE SECURITIES	 	 	4	 
	 
	 	Section 2.01.	 	Form and Dating	 	 	4	 
	 
	 	Section 2.02.	 	Execution and Authentication	 	 	6	 
	 
	 	Section 2.03.	 	Registrar and Paying Agent	 	 	6	 
	 
	 	Section 2.04.	 	Paying Agent to Hold Funds in Trust	 	 	7	 
	 
	 	Section 2.05.	 	Securityholder Lists	 	 	7	 
	 
	 	Section 2.06.	 	Transfer and Exchange	 	 	7	 
	 
	 	Section 2.07.	 	Replacement Securities	 	 	8	 
	 
	 	Section 2.08.	 	Outstanding Securities	 	 	9	 
	 
	 	Section 2.09.	 	Temporary Securities	 	 	9	 
	 
	 	Section 2.10.	 	Cancellation	 	 	10	 
	 
	 	Section 2.11.	 	Defaulted Interest	 	 	10	 
	 
	 	Section 2.12.	 	Treasury Securities	 	 	10	 
	 
	 	Section 2.13.	 	CUSIP Numbers	 	 	10	 
	 
	 	Section 2.14.	 	Deposit of Money	 	 	11	 
	 
	 	Section 2.15.	 	Book-Entry Provisions for Global Security	 	 	11	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE THREE REDEMPTION	 	 	12	 
	 
	 	Section 3.01.	 	Notices to Trustee	 	 	12	 
	 
	 	Section 3.02.	 	Selection of Securities to be Redeemed	 	 	12	 
	 
	 	Section 3.03.	 	Notice of Redemption	 	 	12	 
	 
	 	Section 3.04.	 	Effect of Notice of Redemption	 	 	13	 
	 
	 	Section 3.05.	 	Deposit of Redemption Price	 	 	13	 
	 
	 	Section 3.06.	 	Securities Redeemed in Part	 	 	13	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE FOUR COVENANTS	 	 	13	 
	 
	 	Section 4.01.	 	Payment of Securities	 	 	13	 
	 
	 	Section 4.02.	 	Maintenance of Office or Agency	 	 	14	 
	 
	 	Section 4.03.	 	Compliance Certificate	 	 	14	 
	 
	 	Section 4.04.	 	Maintenance of Corporate Existence	 	 	14	 
	 
	 	Section 4.05.	 	Release of Collateral	 	 	14	 
	 
	 	Section 4.06.	 	Opinions as to Collateral	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE FIVE SUCCESSOR CORPORATION	 	 	15	 
	 
	 	Section 5.01.	 	When Company May Merge, etc.	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE SIX DEFAULTS AND REMEDIES	 	 	15	 
	 
	 	Section 6.01.	 	Events of Default	 	 	15	 






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	 	Section 6.02.	 	Acceleration	 	 	17	 
	 
	 	Section 6.03.	 	Other Remedies	 	 	18	 
	 
	 	Section 6.04.	 	Waiver of Existing Defaults	 	 	18	 
	 
	 	Section 6.05.	 	Control by Majority	 	 	18	 
	 
	 	Section 6.06.	 	Limitation on Suits	 	 	18	 
	 
	 	Section 6.07.	 	Rights of Holders to Receive Payment	 	 	19	 
	 
	 	Section 6.08.	 	Collection Suit by Trustee	 	 	19	 
	 
	 	Section 6.09.	 	Trustee May File Proofs of Claim	 	 	19	 
	 
	 	Section 6.10.	 	Priorities	 	 	20	 
	 
	 	Section 6.11.	 	Undertaking for Costs	 	 	20	 
	 
	 	Section 6.12.	 	Discontinued, Abandoned or Adverse Proceedings	 	 	20	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE SEVEN TRUSTEE	 	 	21	 
	 
	 	Section 7.01.	 	Duties of Trustee	 	 	21	 
	 
	 	Section 7.02.	 	Rights of Trustee	 	 	22	 
	 
	 	Section 7.03.	 	Individual Rights of Trustee	 	 	23	 
	 
	 	Section 7.04.	 	Trustee’s Disclaimer	 	 	23	 
	 
	 	Section 7.05.	 	Notice of Defaults	 	 	23	 
	 
	 	Section 7.06.	 	Reports by Trustee to Holders	 	 	23	 
	 
	 	Section 7.07.	 	Reports by the Company	 	 	24	 
	 
	 	Section 7.08.	 	Compensation and Indemnity	 	 	24	 
	 
	 	Section 7.09.	 	Replacement of Trustee	 	 	25	 
	 
	 	Section 7.10.	 	Successor Trustee by Merger, etc.	 	 	25	 
	 
	 	Section 7.11.	 	Eligibility; Disqualification	 	 	25	 
	 
	 	Section 7.12.	 	Preferential Collection of Claims Against Company	 	 	26	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE EIGHT DISCHARGE OF INDENTURE	 	 	26	 
	 
	 	Section 8.01.	 	Defeasance upon Deposit of Funds or U.S. Government Obligations	 	 	26	 
	 
	 	Section 8.02.	 	Survival of the Company’s Obligations	 	 	28	 
	 
	 	Section 8.03.	 	Application of Trust Funds	 	 	29	 
	 
	 	Section 8.04.	 	Repayment to the Company	 	 	29	 
	 
	 	Section 8.05.	 	Reinstatement	 	 	29	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE NINE AMENDMENTS, SUPPLEMENTS AND WAIVERS	 	 	30	 
	 
	 	Section 9.01.	 	Without Consent of Holders	 	 	30	 
	 
	 	Section 9.02.	 	With Consent of Holders	 	 	30	 
	 
	 	Section 9.03.	 	Compliance with Trust Indenture Act	 	 	31	 
	 
	 	Section 9.04.	 	Revocation and Effect of Consents	 	 	31	 
	 
	 	Section 9.05.	 	Notation on or Exchange of Securities	 	 	32	 
	 
	 	Section 9.06.	 	Trustee to Sign Amendments, etc.	 	 	32	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE TEN MISCELLANEOUS	 	 	32	 
	 
	 	Section 10.01.	 	Trust Indenture Act Controls	 	 	32	 
	 
	 	Section 10.02.	 	Notices	 	 	33	 
	 
	 	Section 10.03.	 	Communications by Holders with Other Holders	 	 	34	 
	 
	 	Section 10.04.	 	Certificate and Opinion as to Conditions Precedent	 	 	34	 






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	 	Section 10.05.	 	Statements Required in Certificate or Opinion	 	 	34	 
	 
	 	Section 10.06.	 	Rules by Trustee and Agents	 	 	35	 
	 
	 	Section 10.07.	 	Legal Holidays	 	 	35	 
	 
	 	Section 10.08.	 	Governing Law	 	 	35	 
	 
	 	Section 10.09.	 	Successors and Assigns	 	 	35	 
	 
	 	Section 10.10.	 	Duplicate Originals	 	 	35	 
	 
	 	Section 10.11.	 	Severability	 	 	35	 
	 
	 	Section 10.12.	 	Waiver of Jury Trial	 	 	35	 
	 
	 	Section 10.13.	 	Force Majeure	 	 	35	 
	 
	 	Section 10.14.	 	Additional Provisions Relating to
Collateral	 	 	36	 






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CROSS-REFERENCE TABLE




     This Cross-Reference Table is not a part of the Indenture.



	 	 	 	 	 
	TIA Indenture Section	 	Section
	 
	 	 	 	 
	310(a)(1)

	 	7.11
	(a)(2)

	 	7.11
	(a)(3)

	 	N.A.
	(a)(4)

	 	N.A.
	(a)(5)

	 	N.A.
	(b)

	 	7.09; 7.11
	311(a)

	 	7.12
	(b)

	 	7.12
	(c)

	 	N.A.
	312(a)

	 	2.05
	(b)

	 	10.03
	(c)

	 	10.03
	313(a)

	 	7.06
	(b)(1)

	 	7.06
	(b)(2)

	 	4.05; 7.06
	(c)

	 	10.02
	(d)

	 	7.06
	314(a)

	 	4.03; 10.02
	(b)

	 	4.06
	(c)(1)

	 	10.04
	(c)(2)

	 	10.04
	(c)(3)

	 	N.A.
	(d)

	 	4.05, 10.04
	(e)

	 	10.05
	(f)

	 	N.A.
	315(a)

	 	7.01(b)
	(b)

	 	7.05; 10.02
	(c)

	 	7.01(a)
	(d)

	 	7.01(c)
	(e)

	 	6.11
	316(a)(last sentence)

	 	2.12; 10.06
	(a)(1)(A)

	 	6.05
	(a)(1)(B)

	 	6.04
	(a)(2)

	 	N.A.
	(b)

	 	6.07
	317(a)(1)

	 	6.08
	(a)(2)

	 	6.09
	(b)

	 	2.04
	318(a)

	 	10.01





 




N.A. means Not Applicable.


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     INDENTURE dated as of                     , 20     , by and between COEUR D’ALENE MINES CORPORATION, an
Idaho corporation (the “Company”), and                     , (the “Trustee”). Each party agrees as follows
for the benefit of the other party and for the equal and ratable benefit of the Holders of the
Company’s debt securities issued under this Indenture (the “Securities”):



ARTICLE ONE




DEFINITIONS AND INCORPORATION BY REFERENCE




Section 1.01. Definitions.




     “Affiliate” means, when used with reference to a specified person, any Person directly or
indirectly controlling or controlled by or under direct or indirect common control with the Person
specified.



     “Agent” means any Registrar, Paying Agent or co-Registrar or agent for service of notices and
demands.



     “Authorizing Resolution” means a resolution adopted by the Board of Directors or by an Officer
or committee of Officers pursuant to Board delegation authorizing a Series of Securities.



     “Bankruptcy Law” means title 11 of the United States Code, as amended, or any similar federal
or state law for the relief of debtors.



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



     “Capital Stock” means, with respect to any Person, any and all shares, interests,
participations or other equivalents (however designated) of or in such Person’s capital stock or
other equity interests, whether now outstanding or issued after the applicable Issue Date.



     “Company” means the party named as such in this Indenture until a successor replaces it
pursuant to the Indenture and thereafter means the successor.



     “Corporate Trust Office” means the principal office of the Trustee at which at any time its
corporate trust business shall be administered, which office at the dated hereof is located at
[                    ], or such other address as the Trustee may designate from time to time by notice to the
Holders and the Company, or the principal corporate trust office of any successor Trustee (or such
other address as such successor Trustee may designate from time to time by notice to the Holders
and the Company).



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



     “GAAP” means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of Certified Public



 









 







Accountants and statements and pronouncements of the Financial Accounting Standards Board or
in such other statements by such other entity as may be approved by a significant segment of the
accounting profession of the United States, as in effect from time to time.



     “Holder” or “Securityholder” means the person in whose name a Security is registered on the
Registrar’s books.



     “Indenture” means this Indenture as amended or supplemented from time to time, including
pursuant to any Authorizing Resolution or supplemental indenture
pertaining to any Series.



     “Issue Date” means, with respect to any Series of Securities, the date on which the Securities
of such Series are originally issued under this Indenture.



     “Lien” means, with respect to any Property, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such Property. For purposes of this definition,
a Person shall be deemed to own, subject to a Lien, any Property which it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease
or other title retention agreement relating to such Property.



     “Officer” means the Chairman of the Board, the President, any Vice President, the Treasurer,
the Controller or the Secretary of the Company.



     “Officers’ Certificate” means a certificate signed by two Officers or by an Officer and an
Assistant Treasurer or an Assistant Secretary of the Company.



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



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



     “principal” of a debt security means the principal of the security plus, when appropriate, the
premium, if any, on the security.



     “Property” of any Person means all types of real, personal, tangible, intangible or mixed
property owned by such Person, whether or not included in the most recent consolidated balance
sheet of such Person and its Subsidiaries under GAAP.



     “SEC” means the Securities and Exchange Commission or any successor agency performing the
duties now assigned to it under the TIA.



     “Securities” means any Securities that are issued under this Indenture.



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     “Security Document” means, for any Series secured by collateral, any mortgage, security
agreement, pledge agreement or other instrument evidencing or creating the lien securing such
Series as amended or supplemented from time to time.



     “Series” means a series of Securities established under this Indenture.



     “Subsidiary” of any Person means any corporation or other entity of which a majority of the
Capital Stock having ordinary voting power to elect a majority of the Board of Directors or other
persons performing similar functions is at the time directly or indirectly owned or controlled by
such Person.



     “TIA” means the Trust Indenture Act of 1939, as in effect from time to time.



     “Trustee” means the party named as such in this Indenture until a successor replaces it
pursuant to this Indenture and thereafter means the successor serving hereunder.



     “Trust Officer” shall mean, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred because of such
person’s knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.



     “United States” means the United States of America.



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



Section 1.02.
Other Definitions.




	 	 	 	 	 
	Term	 	Defined in
	“Agent Members”
	 	 	2.15	 
	“Business Day”
	 	 	10.07	 
	“Custodian”
	 	 	6.01	 
	“Depository”
	 	 	2.15	 
	“Event of Default”
	 	 	6.01	 






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	Term	 	Defined in
	“Legal Holiday”
	 	 	10.07	 
	“Paying Agent”
	 	 	2.03	 
	“Registrar”
	 	 	2.03	 






Section 1.03.
Incorporation by Reference of Trust Indenture Act.




     Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture. The following TIA terms used in this Indenture
have the following meanings:



     “Commission” means the SEC.



     “indenture securities” means the Securities.



     “indenture security holder” means a Securityholder.



     “indenture to be qualified” means this Indenture.



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



     “obligor” on the indenture securities means the Company or any other obligor on the Securities
of a Series.



     All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule have the meanings so assigned to them.



Section 1.04. Rules of Construction.




     Unless the context otherwise requires:




	 	(1)	 	a term has the meaning assigned to it;
	 
	 	(2)	 	an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
	 
	 	(3)	 	“or” is not exclusive;
	 
	 	(4)	 	words in the singular include the plural, and in the plural include the
singular; and
	 
	 	(5)	 	provisions apply to successive events and transactions.





ARTICLE TWO




THE SECURITIES




Section 2.01. Form and Dating.




     The aggregate principal amount of Securities that may be issued under this Indenture is
unlimited. The Securities may be issued from time to time in one or more Series. Each Series



4









 







shall be created by an Authorizing Resolution or a supplemental indenture that establishes the
terms of the Series, which may include the following:




	 	(1)	 	the title of the Series;
	 
	 	(2)	 	the aggregate principal amount (or any limit on the aggregate principal amount)
of the Series and, if any Securities of a Series are to be issued at a discount from
their face amount, the method of computing the accretion of such discount;
	 
	 	(3)	 	the interest rate or method of calculation of the interest rate;
	 
	 	(4)	 	the date from which interest will accrue;
	 
	 	(5)	 	the record dates for interest payable on Securities of the Series;
	 
	 	(6)	 	the dates when, places where and manner in which principal and interest are
payable;
	 
	 	(7)	 	the Registrar and Paying Agent;
	 
	 	(8)	 	the terms of any mandatory (including any sinking fund requirements) or
optional redemption by the Company;
	 
	 	(9)	 	the terms of any redemption, repurchase or repayment at the option of Holders;
	 
	 	(10)	 	the denominations in which Securities are issuable;
	 
	 	(11)	 	whether Securities will be issued in registered or bearer form and the terms of
any such forms of Securities;
	 
	 	(12)	 	whether any Securities will be represented by a global Security and the terms
of any such global Security;
	 
	 	(13)	 	the currency or currencies (including any composite currency) in which
principal or interest or both may be paid;
	 
	 	(14)	 	if payments of principal or interest may be made in a currency other than that
in which Securities are denominated, the manner for determining such payments;
	 
	 	(15)	 	provisions for electronic issuance of Securities or issuance of Securities in
uncertificated form;
	 
	 	(16)	 	any Events of Default, covenants or defined terms in addition to or in lieu of,
or any modification of, those set forth in this Indenture;
	 
	 	(17)	 	whether and upon what terms Securities may be defeased if different from the
provisions set forth in this Indenture;




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	 	(18)	 	the form of the Securities, which, unless the Authorizing Resolution or
supplemental indenture otherwise provides, shall be in the form of Exhibit A;
	 
	 	(19)	 	any terms that may be required by or advisable under applicable law;
	 
	 	(20)	 	the percentage of the principal amount of the Securities that is payable if the
maturity of the Securities is accelerated in the case of Securities issued at a
discount from their face amount;
	 
	 	(21)	 	whether any Securities will have guarantees;
	 
	 	(22)	 	whether the Securities may be converted into or exercised or exchanged for debt
or equity securities of the Company or third parties, and the terms of any such
conversion, exercise or exchange;
	 
	 	(23)	 	the collateral that will secure any Series of Securities or guarantees thereof
and the terms and conditions of the pledge of such collateral and of the related
Security Documents; and
	 
	 	(24)	 	any other terms in addition to or different from those contained in this
Indenture.





     All Securities of one Series need not be issued at the same time and, unless otherwise
provided, a Series may be reopened for issuances of additional Securities of such Series pursuant
to an Authorizing Resolution, an Officers’ Certificate or in any indenture supplemental hereto.



Section 2.02. Execution and Authentication.




     Two Officers shall sign the Securities for the Company by manual or facsimile signature. If
an Officer whose signature is on a Security no longer holds that office at the time the Trustee
authenticates the Security, the Security shall nevertheless be valid.



     A Security shall not be valid until the Trustee manually signs the certificate of
authentication on the Security. The signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.



     The Trustee shall
authenticate Securities for original issue upon receipt of an Officers’
Certificate of the Company and an Opinion of Counsel stating that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and binding obligations of the Company enforceable in
accordance with their terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or affecting creditors’ rights and
by general principles of equity; and that all conditions precedent in the Indenture to the of the
execution and delivery by the Company of such Securities have been
complied with. Each Security shall be
dated the date of its authentication.



Section 2.03. Registrar and Paying Agent.




     The Company shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange (“Registrar”), an office or agency where Securities may be
presented for payment (“Paying Agent”) and an office or agency where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The Registrar shall
keep a register of the Securities and of their transfer and exchange. The Company may have one or
more co-Registrars and one or more additional paying agents. The term “Paying Agent” includes any
additional paying agent.



6









 





     The Company shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture. The agreement shall implement the provisions of this Indenture that relate to such
Agent. The Company promptly shall notify the Trustee in writing of the name and address of any
such Agent; the Trustee shall have the right to inspect the Securities register at all reasonable
times to obtain copies thereof; and the Trustee shall have the right to rely upon such register as
to the names and addresses of the Holders and the principal amounts and certificate numbers
thereof. If the Company fails to maintain a Registrar or Paying Agent or fails to give the
foregoing notice, the Trustee shall act as such.



     The Company initially appoints the Trustee as Registrar and Paying Agent.



Section 2.04.
Paying Agent to Hold Funds in Trust.




     Each Paying Agent shall hold in trust for the benefit of Securityholders and the Trustee all
funds held by the Paying Agent for the payment of principal of or interest on the Securities and
shall notify the Trustee of any default by the Company in making any such payment. If the Company
or a Subsidiary acts as Paying Agent, it shall segregate the funds and hold them as a separate
trust fund.



     The Company at any time may require a Paying Agent to pay all funds held by it to the Trustee.
Upon doing so the Paying Agent shall have no further liability for the funds.



Section 2.05. Securityholder Lists.




     The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee at least seven Business Days before each
semiannual interest payment date and at such other times as the Trustee may request in writing a
list in such form and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders.



Section 2.06. Transfer and Exchange.




          (a) Upon surrender for registration of transfer of any Security of any series at the office or
agency in a Place of Payment for that series, the Company will execute, and the Trustee will
authenticate and deliver in the name of the designated transferee or transferees, one or more new
Securities of the same series, of any authorized denominations and of a like aggregate principal
amount and tenor.




          (b) At the option of the Holder, Securities of any series may be exchanged for other
Securities of the same series, of any authorized denominations and of a like aggregate principal
amount and tenor, upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company will execute, and the Trustee
will authenticate and deliver the Securities which the Holder making the exchange is entitled to
receive.




          (c) Every Security presented or surrendered for registration of transfer or exchange will (if
so required by the Company or the Trustee) be duly endorsed, or be



7









 






accompanied by a written instrument or instruments of transfer, in form reasonably
satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing. No service charge will be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum sufficient to
cover any tax, assessment, fee or other governmental charge that may be imposed in connection with
any registration of transfer or exchange of Securities, other than exchanges pursuant to Section
2.09, 3.06, or 9.05 not involving any transfer. The Company will not be required (i) to issue,
register the transfer of, or exchange Securities of any series during a period beginning at the
opening of business 15 calendar days before the mailing of a notice of redemption of Securities of
that series selected for redemption and ending at the close of business on the day of such mailing
or (ii) to register the transfer of or exchange any Security so selected for redemption in whole or
in part, except, in the case of any Securities to be redeemed in part, the portion thereof not
being redeemed.




          (d) All Securities issued upon any registration of transfer or exchange of Securities will be
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.




          (e) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Security (including any transfers between or
among Depositary Participants or beneficial owners of interests in any Global Security) other than
to require delivery of such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by the terms of, this Indenture, and to
examine the same to determine substantial compliance as to form with the express requirements
hereof.




          (f) Any Holder of a global Security, by acceptance of such global Security, shall agree that
transfers of beneficial interests in such global Security may be effected only through a book entry
system maintained by the Holder of such global Security (or its agent), and that ownership of a
beneficial interest in the Security shall be required to be reflected in a book entry.




Section 2.07. Replacement Securities.




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




          (b) There shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss, or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company will execute and the Trustee will authenticate and deliver, in lieu of any
such destroyed, lost, or stolen Security, a new Security of



8









 






the same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.




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




          (d) Upon the issuance of any new Security under this Section 2.07, the Company may require the
payment of a sum sufficient to cover any tax, assessment, fee 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.




          (e) Every new Security of any series issued pursuant to this Section 2.07 in exchange for any
mutilated Security or in lieu of any destroyed, lost, or stolen Security will constitute an
original additional contractual obligation of the Company, whether or not the mutilated, destroyed,
lost, or stolen Security shall be at any time enforceable by anyone, and will be entitled to all
the benefits of this Indenture equally and proportionately with any and all other Securities of
that series duly issued hereunder.




          (f) The provisions of this Section 2.07 are exclusive and will preclude (to the extent lawful)
all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost, or stolen Securities.




Section 2.08. Outstanding Securities.




     Securities outstanding at any time are all Securities authenticated by the Trustee except for
those canceled by it and those described in this Section 2.08. A Security does not cease to be
outstanding because the Company or one of its Affiliates holds the Security. If a Security is
replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a bona fide purchaser. If the Paying
Agent holds on a redemption date or maturity date funds sufficient to pay Securities payable on
that date, then on and after that date such Securities cease to be outstanding and interest on them
ceases to accrue.



     Subject to the foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.



Section 2.09. Temporary Securities.




     Until definitive Securities are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities. Temporary Securities shall be substantially in the form
of definitive Securities but may have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall prepare and, upon surrender
for cancellation of the temporary Security, the Company shall execute and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities. Until so exchanged,



9









 







the temporary Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities authenticated and delivered hereunder.



Section 2.10. Cancellation.




     The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar
and Paying Agent shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange, redemption or payment. The Trustee shall cancel and dispose of, or retain
in accordance with its standard retention policy, all Securities surrendered for registration or
transfer, exchange, redemption, paying or cancellation. Unless the Authorizing Resolution or
supplemental indenture so provides, the Company may not issue new Securities to replace Securities
that it has previously paid or delivered to the Trustee for cancellation.



Section 2.11. Defaulted Interest.




     If the Company defaults in a payment of interest on the Securities, it shall pay the defaulted
interest plus any interest payable on the defaulted interest to the persons who are Securityholders
on a subsequent special record date. The Company shall fix such special record date and a payment
date which shall be reasonably satisfactory to the Trustee. At least 15 days before such special
record date, the Company shall mail to each Securityholder and the Trustee a notice that states the
record date, the payment date and the amount of defaulted interest to be paid. On or before the
date such notice is mailed, the Company shall deposit with the Paying Agent funds sufficient to pay
the amount of defaulted interest to be so paid. The Company may pay defaulted interest in any
other lawful manner if, after notice given by the Company to the Trustee of the proposed payment,
such manner of payment shall be deemed practicable by the Trustee.



Section 2.12. Treasury Securities.




     In determining whether the Holders of the required principal amount of Securities of a Series
have concurred in any direction, waiver, consent or notice, Securities owned by the Company or any
of its Affiliates shall be considered as though they are not outstanding, except that, for the
purposes of determining whether the Trustee shall be protected in relying on any such direction,
waiver or consent, only Securities which the Trustee actually knows are so owned shall be so
considered.



Section 2.13. CUSIP Numbers.




     The Company in
issuing the Securities of any Series may use a “CUSIP” number, and if so, the
Trustee shall use the CUSIP number in notices of redemption or exchange as a convenience to Holders
of such Securities; provided that such notice may state that no
representation is made as to the correctness or
accuracy of any such CUSIP number printed in the notice or on such Securities, and that reliance
may be placed only on the other identification numbers printed on such Securities. The Company
promptly shall notify the Trustee of any change in any CUSIP number.



10









 





Section 2.14. Deposit of Money.




     Prior to 11:00 a.m. New York City time on each interest payment date and maturity date with
respect to each Series of Securities, the Company shall have deposited with the Paying Agent
immediately available funds sufficient to make cash payments due on such interest payment date or
maturity date, as the case may be, in a timely manner which permits the Paying Agent to remit
payment to the Holders on such interest payment date or maturity date, as the case may be.



Section 2.15. Book-Entry Provisions for Global Security.




          (a) Any global Security of a Series initially shall (i) be registered in the name of the
depository who shall be identified in the Authorizing Resolution or supplemental indenture relating
to such Securities (the “Depository”) or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear any required legends. Members of, or
participants in, the Depository (“Agent Members”) shall have no rights under this Indenture with
respect to any global Security held on their behalf by the Depository, or the Trustee as its
custodian, or under the global Security, and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of the global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or impair, as between the
Depository and its Agent Members, the operation of customary practices governing the exercise of
the rights of a Holder of any Security.




          (b) Transfers of any global Security shall be limited to transfers in whole, but not in part,
to the Depository, its successors or their respective nominees. Interests of beneficial owners in
the global Security may be transferred or exchanged for definitive Securities in accordance with
the rules and procedures of the Depository. In addition, definitive Securities shall be
transferred to all beneficial owners in exchange for their beneficial interests in a global
Security if (i) the Depository notifies the Company that it is unwilling or unable to continue as
Depository for the global Security and a successor depository is not appointed by the Company
within 90 days of such notice, (ii) the Company, at its option, notifies the Trustee in writing
that the Company elects to cause the issuance of definitive Securities under this Indenture or
(iii) an Event of Default has occurred and is continuing and the Registrar has received a request
from the Depository to issue definitive Securities.




          (c) In connection with any transfer or exchange of a portion of the beneficial interest in any
global Security to beneficial owners pursuant to paragraph (b), the Registrar shall (if one or more
definitive Securities are to be issued) reflect on its books and records the date and a decrease in
the principal amount of the global Security in an amount equal to the principal amount of the
beneficial interest in the global Security to be transferred, and the Company shall execute, and
the Trustee shall authenticate and deliver, one or more definitive Securities of like tenor and
amount.




          (d) In connection with the transfer of an entire global Security to beneficial owners pursuant
to paragraph (b), the global Security shall be deemed to be surrendered to the



11









 






Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depository in exchange for its beneficial
interest in the global Security, an equal aggregate principal amount of definitive Securities of
authorized denominations.




          (e) The Holder of any global Security may grant proxies and otherwise authorize any person,
including Agent Members and persons that may hold interests through Agent Members, to take any
action which a Holder is entitled to take under this Indenture or the Securities of such Series.




ARTICLE THREE




REDEMPTION




Section 3.01. Notices to Trustee.




     Securities of a Series that are redeemable prior to maturity shall be redeemable in accordance
with their terms and, unless the Authorizing Resolution or supplemental indenture provides
otherwise, in accordance with this Article Three.



     If the Company wants to redeem Securities pursuant to the provisions of the applicable
Authorizing Resolution or supplemental indenture, it shall provide the Trustee notice pursuant to
Section 3.03. Any such notice may be canceled at any time prior to notice of such redemption being
mailed to Holders. Any such canceled notice shall be void and of no effect. If the Company wants
to credit any Securities previously redeemed, retired or acquired against any redemption pursuant
to the provisions of the applicable Authorizing Resolution or supplemental indenture, it shall
notify the Trustee of the amount of the credit and it shall deliver any Securities not previously
delivered to the Trustee for cancellation with such notice.



     The Company shall give each notice provided for in this Section 3.01 at least 15 days before
the notice of any such redemption is to be mailed to Holders unless a shorter notice shall be
satisfactory to the Trustee.



Section 3.02. Selection of Securities to be Redeemed.




     If fewer than all of the Securities of a Series are to be redeemed, the Trustee shall select
the Securities to be redeemed by a method the Trustee considers fair and appropriate. The Trustee
shall make the selection from Securities outstanding not previously called for redemption and shall
promptly notify the Company of the Securities so selected. Securities and portions of them the
Trustee selects shall be in amounts equal to the minimum denomination for the Series or an integral
multiple thereof. Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption.



Section 3.03. Notice of Redemption.




     At least 30 days but not more than 60 days before a redemption date, the Company shall mail a
notice of redemption by first-class mail, postage prepaid, to each Holder of Securities to be
redeemed. The notice shall identify the Securities to be redeemed and shall state: (1) the



12









 







CUSIP number; (2) the redemption date; (3) the redemption price; (4) the name and address of
the Paying Agent; (5) that Securities called for redemption must be surrendered to the Paying Agent
to collect the redemption price; (6) that interest on Securities called for redemption ceases to
accrue on and after the redemption date; and (7) that the Securities are being redeemed pursuant to
the mandatory redemption or the optional redemption provisions, as applicable. 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 15 days prior to the date
on which notice of redemption is to be mailed or such shorter period as may be satisfactory to the
Trustee, 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 3.04. Effect of Notice of Redemption.




     Once notice of redemption is mailed, Securities called for redemption become due and payable
on the redemption date and at the redemption price as set forth in the notice of redemption. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption price, plus accrued
interest to the redemption date.



Section 3.05. Deposit of Redemption Price.




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



Section 3.06. Securities Redeemed in Part.




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



ARTICLE FOUR




COVENANTS




Section 4.01. Payment of Securities.




     The Company shall pay the principal of, premium, if any, and interest on Securities of a
Series on the dates and in the manner provided in the Securities of that Series. An installment of
principal or interest shall be considered paid on the date it is due if the Paying Agent holds on
that date funds designated for and sufficient to pay the installment and such Paying Agent is not
prohibited from paying such money to the Holders of such series of Securities on that date pursuant
to the terms of this Indenture.



     The Company shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate borne by the Series; it shall pay interest on
overdue installments of interest (without regard to any applicable grace period) at the same rate.



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Section 4.02. Maintenance of Office or Agency.




     The Company shall maintain the office or agency required under Section 2.03. The Company
shall give prior written notice to the Trustee of the location, and any change in the location, of
such office or agency. If at any time the Company shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the Trustee.



Section 4.03. Compliance Certificate.




     The Company shall deliver to the Trustee within 120 days after the end of each fiscal year of
the Company an Officers’ Certificate stating whether or not the signers know of any Default by the
Company in performing any of its obligations under this Indenture. If they do know of such a
Default, the certificate shall describe the Default. The Company shall, so long as any of the Securities are outstanding, deliver to the Trustee,
forthwith (and in any event within five Business Days) upon any Officer of the Company becoming
aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event
of Default.



Section 4.04. Maintenance of Corporate Existence.




     The Company will cause to be done all things necessary to preserve and keep in full force and
effect the corporate existence of the Company; provided, however, that nothing in this Section 4.04
shall prevent a consolidation or merger of the Company not prohibited by the provisions of Article
Five or any other provision or the Authorizing Resolution or supplemental indenture pertaining to a
Series.



Section 4.05. Release of Collateral.




     To the extent applicable, the Company shall cause TIA Section 313(b), relating to reports, and
TIA Section 314(d), relating to the release of property or security from the liens and security
interests provided for in a Security Document and relating to the substitution therefor of any
property or securities to be subjected to liens and security interests provided for in a Security
Document, to be complied with. Any certificate or opinion required by TIA Section 314(d) may be
made by an Officer of the Company except in cases where TIA Section 314(d) requires that such
certificate or opinion be made by an independent Person, which Person shall be independent
engineer, appraiser or other expert selected or approved by the Trustee in the exercise of
reasonable care.



     In addition to the foregoing, whenever the Trustee or Collateral Agent is requested to release
property or security from liens and/or security interests, the
Trustee and Collateral Agent (i) shall
receive and be conclusively protected in relying upon an Opinion of Counsel and Officers’
Certificate stating that all conditions precedent to such release in the Indenture and the
applicable security documents have been complied with and
(ii) shall be fully protected in relying upon an Officers’
Certificate stating that the provisions in TIA Sections 313(b)
and 314(d) are not applicable to the release or substitution, if
documents under such TIA Sections are not delivered.



Section 4.06. Opinions as to Collateral.




          (a) Promptly after the execution and delivery of the Indenture, the Company will furnish to
the Trustee an Opinion of Counsel to the effect that the Indenture has been properly recorded and
filed to make effective the lien intended to be created by this Indenture,



14









 






and reciting the details of such action, or stating that in the opinion of such counsel no
such action is necessary to make such lien effective.




          (b) At least annually after the execution and delivery of the Indenture, the Company will
furnish to the Trustee an Opinion of Counsel either to the effect that, in the opinion of such
counsel, such action has been taken with respect to the recording, filing re-recording and refiling
of this Indenture as is necessary to maintain the lien of this Indenture and reciting the details
of such action or to the effect that in the opinion of such counsel no such action is necessary to
maintain such lien.






ARTICLE FIVE




SUCCESSOR CORPORATION




Section 5.01. When Company May Merge, etc.




     The Company shall not consolidate with or merge with or into any other corporation or transfer
all or substantially all of its assets to any entity unless (1) the resulting, surviving or
transferee entity (if other than the Company), which shall be a corporation organized and existing
under the laws of the United States or a State thereof, assumes by supplemental indenture, in a
form reasonably satisfactory to the Trustee, all of the obligations of the Company under the
Securities and this Indenture and (2) immediately after giving effect to, and as a result of, such
transaction, no Default or Event of Default shall have occurred and be continuing. Thereafter, in
the event that the Company is not the continuing corporation, such successor corporation or
corporations shall succeed to and be substituted for the Company with the same effect as if it had
been named herein as the “Company” and all such obligations of the predecessor corporation shall
terminate. The Company shall deliver to the Trustee prior to the consummation of the proposed
transaction an Officers’ Certificate to the foregoing effect and an Opinion of Counsel stating that
the proposed transaction and such supplemental indenture comply with this Indenture. To the extent
that an Authorizing Resolution or supplemental indenture pertaining to any Series provides for
different provisions relating to the subject matter of this Article Five, the provisions in such
Authorizing Resolution or supplemental indenture shall govern for purposes of such Series.



ARTICLE SIX




DEFAULTS AND REMEDIES




Section 6.01. Events of Default.




     An “Event of Default” on a Series occurs if, voluntarily or involuntarily, whether by
operation of law or otherwise, any of the following occurs:



15









 






	 	(1)	 	the failure by the Company to pay interest on any Security of such Series when
the same becomes due and payable and the continuance of any such failure for a period
of 30 days;
	 
	 	(2)	 	the failure by the Company to pay the principal of any Security of such Series
when the same becomes due and payable at maturity, upon acceleration or otherwise;
	 
	 	(3)	 	the failure by the Company to comply with any of its agreements or covenants
in, or provisions of, the Securities of such Series or this Indenture (other than a
failure to comply with any covenant or agreement contained in Section 314(a)(1) of the
Trust Indenture Act or the failure to comply with covenants and agreements to deliver
SEC reports to the trustee) and the continuation of such failure for the period and
after the notice specified below (except in the case of a default with respect to
Article Five or any replacement provisions as contemplated by Article Five which will
constitute Events of Default with notice but without passage of time);
	 
	 	(4)	 	the Company pursuant to or within the meaning of any Bankruptcy Law:






	 	(A)	 	commences a voluntary case,
	 
	 	(B)	 	consents to the entry of an order for relief against it in an
involuntary case,
	 
	 	(C)	 	consents to the appointment of a Custodian of it or for all or
substantially all of its property, or
	 
	 	(D)	 	makes a general assignment for the benefit of its creditors; or






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






	 	(A)	 	is for relief against the Company as debtor in an involuntary
case,
	 
	 	(B)	 	appoints a Custodian of the Company or a Custodian for all or
substantially all of the property of the Company, or
	 
	 	(C)	 	orders the liquidation of the Company,






     and the order or decree remains unstayed and in effect for 60 days.



     A Default as described in clause (3) above will not be deemed an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in principal amount of the
then-outstanding Securities of the applicable Series notify the Company and the Trustee, of the
Default and (except in the case of a default with respect to Article Five or any replacement
provisions as contemplated by Article Five) the Company does not cure the Default within 60 days
after receipt of the notice. The notice must specify the Default, demand that it be remedied and
state that the notice is a “Notice of Default.” If such a Default is cured within such time



16









 







period, it ceases. The term “Custodian” means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.



     Any failure to perform, or breach of, any covenant or agreement of the Company in respect of
the Securities of such series contained in Section 314(a)(1) of the Trust Indenture Act or Section
7.07 shall not be a default or an Event of Default. Remedies against the Company for any such
failure or breach will be limited to liquidated damages as described in the following sentence, and
Holders shall not have any right to accelerate the maturity of the Securities of such series as a
result of any such failure or breach. Instead, if there is such a failure or breach of the
Company’s obligation under Section 314(a)(1) of the Trust Indenture Act or Section 7.07 and
continuance of such failure or breach for a period of 90 days after the date on which there has
been given, by registered or certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the then-outstanding Securities
of such series, a written notice specifying such failure or breach and requiring it to be remedied
and stating that such notice is a “Notice of Reporting Noncompliance” hereunder, the Company will
pay liquidated damages to all Holders of Securities of such series, at a rate per year equal to
0.25% of the principal amount of such Securities from the 90th day following such notice
to and including the 150th day following such notice and at a rate per year equal to
0.5% of the principal amount of such Securities from and including the 151st day following such
notice, until such failure or breach is cured. Any such liquidated damages shall be payable in the
same manner and on the same dates as the stated interest payable on the Securities of such series.
In the event that the Company is required to pay such liquidated damages, the Company shall provide
a written notice to the Trustee (and if the Trustee is not the paying agent, the paying agent) no
later then five Business Days prior to the payment date for the payment of such liquidated damages
setting forth the amount of such liquidated damages to be paid by the Company on such payment date
and directing the Trustee (or, if the Trustee is not the paying agent, the paying agent) to make
such payment to the extent it receives funds from the Company to do so. The Trustee shall not at
any time be under any duty or responsibility to any holder of Securities to determine whether such
liquidated damages are payable, or with respect to the nature, extent or calculation of the amount
of liquidated damages owed.



Section 6.02. Acceleration.




          If an Event of Default (other than an Event of Default with respect to the Company resulting
from clauses (4) or (5) above) shall have occurred and be continuing under the Indenture, the
Trustee by notice to the Company, or the Holders of at least 25% in principal amount of the
Securities of the applicable Series then outstanding by notice to the Company and the Trustee, may
declare all Securities of such Series to be due and payable immediately. Upon such declaration of
acceleration, the amounts due and payable on the Securities of such Series will be due and payable
immediately. If an Event of Default with respect to the Company specified in clauses (4) or (5) of
Section 6.01 occurs, all amounts due and payable on the Securities of such Series will ipso facto
become and be immediately due and payable without any declaration, notice or other act on the part
of the Trustee and the Company or any Holder. Any declaration of acceleration with respect to the
Securities of any Series may be rescinded and annulled by the Holders of a majority in principal
amount of the outstanding Securities of such Series by written notice to the Trustee, except a
continuing Default or Event of Default in the payment of principal of or interest on the Securities
of such Series, if (i) the rescission would not



17









 






conflict with any judgment or decree of a court of competent jurisdiction and (ii) all
existing Events of Default have been cured or waived except nonpayment of principal of or interest
on the Securities of such Series that has become due solely by such declaration of acceleration.




          No such rescission shall extend to or shall affect any subsequent Event of Default, or shall
impair any right or power consequent thereon.




Section 6.03. Other Remedies.




     If an Event of Default on a Series occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of principal of or
interest on the Series or to enforce the performance of any provision in the Securities or this
Indenture applicable to the Series.



     The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an Event of Default shall not impair
the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.



Section 6.04.
Waiver of Existing Defaults.




     Subject to Section 9.02, the Holders of a majority in principal amount of the outstanding
Securities of a Series on behalf of all the Holders of the Series by notice to the Trustee may
waive an existing Default or Event of Default on such Series and its consequences hereunder other
than a payment of principal, interest or premium. Upon any such waiver, any such Default shall
cease to exist, and any such Event of Default 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 Event of
Default or impair any right consequent thereon.



Section 6.05. Control by Majority.




     The Holders of a majority in principal amount of the outstanding Securities of a Series may
direct the time, method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on it with respect to such Series. The Trustee,
however, may refuse to follow any direction (i) that conflicts with law or this Indenture, (ii)
that, subject to Section 7.01, the Trustee determines is unduly prejudicial to the rights of other
Securityholders, (iii) that would involve the Trustee in personal liability or (iv) if the Trustee
shall not have been provided with indemnity satisfactory to it.



Section 6.06. Limitation on Suits.




     A Securityholder of a Series may not pursue any remedy with respect to this Indenture or the
Series unless:




	 	(1)	 	the Holder gives to the Trustee written notice of a continuing Event of Default
on the Series;




18









 






	 	(2)	 	the Holders of at least a majority in principal amount of the outstanding
Securities of the Series make a written request to the Trustee to pursue the remedy;
	 
	 	(3)	 	such Holder or Holders offer to the Trustee indemnity satisfactory to the
Trustee against any loss, liability or expense;
	 
	 	(4)	 	the Trustee does not comply with the request within 60 days after receipt of
the request and the offer of indemnity; and
	 
	 	(5)	 	no written request inconsistent with such written request shall have been given
to the Trustee pursuant to this Section 6.06.





     A Securityholder may not use this Indenture to prejudice the rights of another Securityholder
or to obtain a preference or priority over another Securityholder.



Section 6.07. Rights of Holders to Receive Payment.




     Notwithstanding any other provision of this Indenture, the right of any Holder to receive
payment of principal of and interest on the Security, on or after the respective due dates
expressed in the Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, is absolute and unconditional and shall not be impaired or affected without
the consent of the Holder.



Section 6.08. Collection Suit by Trustee.




     If an Event of Default in payment of interest or principal specified in Section 6.01(1) or (2)
occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an
express trust against the Company for the whole amount of principal and interest remaining unpaid,
together with the reasonable compensation and expenses of the Trustee, its agents and counsel.



Section 6.09. Trustee May File Proofs of Claim.




     The Trustee may file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relative to the Company, its creditors or its
property, and unless prohibited by applicable law or regulation, may vote on behalf of the Holders
in any election of a Custodian and shall be entitled and empowered to collect and receive any money
or other property payable or deliverable on any such claims and to distribute the same and any
Custodian in any such judicial proceeding is hereby authorized by each Securityholder to make such
payments to the Trustee. Nothing herein shall be deemed to authorize the Trustee to authorize or
consent to or vote for or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities or the rights of
any Holder or to authorize the Trustee to vote in respect of the claim of any Securityholder except
as aforesaid for the election of the Custodian.



19









 





Section 6.10. Priorities.




     If the Trustee collects any funds pursuant to this Article Six, it shall pay out the funds in
the following order:



     First: to the Trustee for all amounts due under Section 7.08;



     Second: to Securityholders of the Series for amounts due and unpaid on the Series for
principal and interest, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Series for principal and interest, respectively; and



     Third: to the Company as its interests may appear.



     The Trustee may fix a record date and payment date for any payment to Securityholders pursuant
to this Section 6.10.



Section 6.11. Undertaking for Costs.




     In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees and expenses, against any party litigant in the suit, having the due regard to the merits and
good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of more
than 10% in principal amount of the Series.



Section 6.12. Discontinued, Abandoned or Adverse Proceedings.




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



ARTICLE SEVEN




TRUSTEE




Section 7.01. Duties of Trustee.




          (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise its
rights and powers 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.




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




               (1) The Trustee need perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall be read into this Indenture
against the Trustee.



               (2) In the absence of bad faith on its part, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of this Indenture. The
Trustee, however, shall examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture but need not confirm or investigate the accuracy of
mathematical calculations or other facts or matters stated therein.



          (c) The Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:




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



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



               (3) The Trustee shall not be liable with respect to any action it takes or omits to take in
good faith in accordance with a direction received by it pursuant to Section 6.05 or any other
direction of the Holders permitted hereunder.



          (d) Every provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section 7.01.




          (e) The Trustee may refuse to perform any duty or exercise any right or power unless it
receives indemnity satisfactory to it against any loss, liability or expense.




          (f) The Trustee shall not be liable for interest on any funds received by it except as the
Trustee may agree with the Company. Funds held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.




          (g) None of the provisions contained in this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur financial liability in the performance of any of its duties
or in the exercise of any of its rights or powers, if there shall be reasonable grounds for
believing that the repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.





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Section 7.02. Rights of Trustee.




     Subject to Section 7.01:



          (a) The Trustee may conclusively rely and shall be fully protected in acting or refraining
from acting on any resolution, opinion, notice, consent, certificate, instrument, report, direction
or other paper or document believed by it to be genuine and to have been signed or presented by the
proper person. The Trustee need not investigate any fact or matter stated in the document,
resolution, certificate, instrument, report or direction.



          (b) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate
or an Opinion of Counsel or both, which shall conform to Sections 10.04 and 10.05 hereof and
containing such other statements as the Trustee reasonably deems necessary to perform its duties
hereunder. The Trustee shall not be liable for any action it takes or omits to take in good faith
in reliance on the Officers’ Certificate, Opinion of Counsel or any other direction of the Company
permitted hereunder.



          (c) The Trustee may act through agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care.



          (d) The Trustee shall not be liable for any action taken, suffered or omitted by it in good
faith and believed by it to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture.



          (e) The Trustee may consult with counsel of its selection, and the advice of such counsel or
any Opinion of Counsel as to matters of law shall be full and complete authorization and protection
in respect of any action taken, omitted or suffered by it hereunder in good faith and in accordance
with the advice or opinion of such counsel.



          (f) Unless otherwise specifically provided in the Indenture, any demand, request, direction or
notice from the Company shall be sufficient if signed by an Officer of the Company.



          (g) For all purposes under this Indenture, the Trustee shall not be deemed to have notice or
knowledge of any Event of Default unless a Trust Officer assigned to and working in the Trustee’s
Corporate Trust Office has actual knowledge thereof or unless written notice of any Event of
Default is received by the Trustee at its address specified in Section 10.02 hereof and such notice
references the Securities generally, the Company or this Indenture.



          (h) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to and shall be
enforceable by the Trustee in each of its capacities hereunder and each agent, custodian and other
Person employed to act hereunder.



          (i) 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 security or indemnity



22









 







satisfactory to the Trustee against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.



          (j) In no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.



Section 7.03. Individual Rights of Trustee.




     The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee. Any Agent may do the same with like rights. The Trustee, however,
must comply with Sections 7.11 and 7.12.



Section 7.04. Trustee’s Disclaimer.




     The Trustee makes no representation as to the validity or adequacy of this Indenture, the
Securities or of any prospectus used to sell the Securities; it shall not be accountable for the
Company’s use of the proceeds from the Securities; it shall not be accountable for any funds paid
to the Company, or upon the Company’s direction, if made under and in accordance with any provision
of this Indenture; it shall not be responsible for the use or application of any funds received by
any Paying Agent other than the Trustee; and it shall not be responsible for any statement of the
Company in this Indenture or in the Securities other than its certificate of authentication.



Section 7.05. Notice of Defaults.




     If a Default on a Series occurs and is continuing and if it is known to the Trustee, the
Trustee shall mail to each Securityholder of the Series notice of the Default (which shall specify
any uncured Default known to it) within 90 days after such event becomes known to the Trustee.
Except in the case of a default in payment of principal of or interest on a Series, the Trustee may
withhold the notice if and so long as the board of directors of the Trustee, the executive or any
trust committee of such directors or responsible Trust Officers of the Trustee in good faith
determine that withholding the notice is in the interests of Holders of the Series.



Section 7.06. Reports by Trustee to Holders.




     Within 60 days after each May 15 beginning with the May 15 following the date of this
Indenture, the Trustee shall mail to each Securityholder a brief report dated as of such May 15
that complies with TIA Section 313(a) (but if no event described in TIA Section 313(a)(2) has
occurred within the 12 months preceding the reporting date no report need be transmitted). The
Trustee also shall comply with TIA Section 313(b). A copy of each report at the time of its
mailing to Securityholders shall be delivered to the Company and filed by the Trustee with the SEC
and each national securities exchange on which the Securities are listed or delisted therefrom.
The Company shall notify the Trustee of each national securities exchange on which the Securities
are listed.



23









 





Section 7.07. Reports by the Company.




          (a) So long as any Securities are outstanding, the Company shall file with the Trustee, within
15 days after the Company files with the Commission, copies of its 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) that the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
The Company shall be deemed to have complied with the previous sentence to the extent that such
information, documents and reports are filed with the Commission via EDGAR (or any successor
electronic delivery procedure).



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



Section 7.08. Compensation and Indemnity.




     The Company shall pay to the Trustee or predecessor trustee from time to time reasonable
compensation for their respective services subject to any written agreement between the Trustee and
the Company. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket
expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of
the Trustee’s agents and counsel. The Company shall indemnify the Trustee and each predecessor
trustee, its officers, directors, employees and agents and hold it harmless against any loss,
claim, damage, liability or expense incurred or made by or on behalf of it in connection with the
administration of this Indenture or the trust hereunder and its duties hereunder including the
costs and expenses of defending itself against or investigating any claim in the premises. The
Trustee shall notify the Company promptly of any claim for which it may seek indemnity of which a
Trust Officer has received written notice. The Company need not reimburse any expense or indemnify
against any loss or liability caused by the Trustee through the Trustee’s own negligence or willful
misconduct. To ensure the Company’s payment obligations in this Section, the Trustee shall have a
lien prior to the Securities on all funds or property held or collected by the Trustee, except
that held in trust to pay principal of or interest on particular Securities. When the Trustee
incurs expenses or renders services in connection with an Event of Default specified in Section
6.01(4) or (5), the expenses (including the reasonable fees and expenses of its counsel) and the
compensation for services in connection therewith are to constitute expenses of administration
under any bankruptcy law. The provisions of this Section 7.08 shall survive the termination of
this Indenture and the resignation or removal of the Trustee.



Section 7.09. Replacement of Trustee.




     The Trustee may resign by so notifying the Company. The Holders of a majority in principal
amount of the outstanding Securities may remove the Trustee by so notifying the removed Trustee in
writing and may appoint a successor trustee with the Company’s consent. Such resignation or
removal shall not take effect until the appointment by the Securityholders or



24









 







the Company as hereinafter provided of a successor trustee and the acceptance of such
appointment by such successor trustee. The Company may remove the Trustee and any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee and the appointment
of a successor trustee for any or no reason, including if:




	 	(1)	 	the Trustee fails to comply with Section 7.11 after written request by the
Company or any bona fide Securityholder who has been a Securityholder for at least six
months;
	 
	 	(2)	 	the Trustee is adjudged a bankrupt or an insolvent;
	 
	 	(3)	 	a receiver or other public officer takes charge of the Trustee or its property;
or
	 
	 	(4)	 	the Trustee becomes incapable of acting.





     If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Company shall promptly appoint a successor trustee. If a successor trustee does not
take office within 45 days after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company or any Holder may petition at the expense of the Company any court of competent
jurisdiction for the appointment of a successor trustee. A successor trustee shall deliver a
written acceptance of its appointment to the retiring Trustee and to the Company. Immediately
after that, the retiring Trustee shall transfer all property held by it as Trustee to the successor
trustee, the resignation or removal of the retiring Trustee shall become effective, and the
successor trustee shall have all the rights, powers and duties of the Trustee under this Indenture.
A successor trustee shall mail notice of its succession to each Securityholder.



Section 7.10. Successor Trustee by Merger, etc.




     If the Trustee consolidates with, merges with or into or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the successor
corporation without any further act shall be the successor trustee.



Section 7.11. Eligibility; Disqualification.




     This Indenture shall always have a Trustee who satisfies the requirements of TIA Section
310(a)(1). The Trustee shall have a combined capital and surplus of at least $10,000,000 as set
forth in its most recent published annual report of condition. The Trustee shall comply with TIA
Section 310(b).



Section 7.12. Preferential Collection of Claims Against Company.




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



25









 





ARTICLE EIGHT




DISCHARGE OF INDENTURE




Section 8.01. Defeasance upon Deposit of Funds or U.S. Government Obligations.




          (a) The Company may, at its option and at any time, elect to have either paragraph (b) or
paragraph (c) below be applied to the outstanding Securities of any Series upon compliance with the
applicable conditions set forth in paragraph (d).



          (b) Upon the Company’s exercise under paragraph (a) of the option applicable to this paragraph
(b), the Company shall be deemed to have been released and discharged from its obligations with
respect to the outstanding Securities of a Series on the date the applicable conditions set forth
below are satisfied and shall be entitled to a release of all collateral securing such Series other
than the property deposited with the Trustee pursuant to paragraphs
(d)(1) and (d)(7) below (hereinafter,
“Legal Defeasance”). For this purpose, such Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire amount due represented by the outstanding Securities
of a Series, which shall thereafter be deemed to be “outstanding” only for the purposes of the
Sections and matters under this Indenture referred to in clauses (i) and (ii) below, and to have
satisfied all its other obligations under such Securities and this Indenture insofar as such
Securities are concerned, except for the following which shall survive until otherwise terminated
or discharged hereunder: (i) the rights of Holders of outstanding Securities of a Series to receive
solely from the trust fund described in paragraph (d) below and as more fully set forth in such
paragraph, payments in respect of the principal of and interest on such Securities when such
payments are due and (ii) obligations listed in Section 8.02, subject to compliance with this
Section 8.01. The Company may exercise its option under this paragraph (b) notwithstanding the
prior exercise of its option under paragraph (c) below with respect to such Securities.



          (c) Upon the Company’s exercise under paragraph (a) of the option applicable to this paragraph
(c), the Company shall be released and discharged from the obligations under any covenant contained
in Article Four (other than Sections 4.01, 4.02 and 4.04), clause (2) of Section 5.01 and any other
covenant contained in the Authorizing Resolution or supplemental indenture relating to such Series
(except to the extent provided for therein), on and after the date the conditions set forth below
are satisfied (hereinafter, “Covenant Defeasance”), and the Securities of such Series shall
thereafter be deemed to be not “outstanding” for the purpose of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder. For
this purpose, such Covenant Defeasance means that, with respect to the outstanding Securities of a
Series, the Company may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or indirectly, by reason
of any reference elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such omission to comply shall
not constitute a Default or an Event of Default under Section 6.01(3), but, except as specified
above, the remainder of this Indenture and such Securities shall be unaffected thereby.



26









 





          (d) The following shall be the conditions to application of either paragraph (b) or paragraph
(c) above to the outstanding Securities of the applicable Series:



               (1) The Company shall have irrevocably deposited in trust with the Trustee, pursuant to an
irrevocable trust and security agreement in form and substance reasonably satisfactory to the
Trustee, funds in U.S. dollars or U.S. government obligations or a combination thereof in such
amounts and at such times as are sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of and interest on the outstanding Securities
of such Series to maturity or redemption; provided, however, that the Trustee shall have received
an irrevocable written order from the Company instructing the Trustee to apply such funds or the
proceeds of such U.S. government obligations to said payments with respect to the Securities of
such Series to maturity or redemption.



               (2) No Default or Event of Default shall have occurred and be continuing on the date of such
deposit.



               (3) Such deposit will not result in a Default under this Indenture or a breach or violation
of, or constitute a default under, any other material instrument or agreement for borrowed money to
which the Company is a party.



               (4)(i) In the event the Company elects paragraph (b) hereof, the Company shall deliver to the
Trustee an Opinion of Counsel in the United States, in form and substance reasonably satisfactory
to the Trustee, to the effect that (A) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (B) since the Issue Date pertaining to such Series,
there has been a change in the applicable federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall state that, or (ii) in the event the Company
elects paragraph (c) hereof, the Company shall deliver to the Trustee an Opinion of Counsel in the
United States, in form and substance reasonably satisfactory to the Trustee, to the effect that, in
the case of clauses (i) and (ii), Holders of the Securities of such Series will not recognize
income, gain or loss for federal income tax purposes as a result of such deposit and the defeasance
contemplated hereby and will be subject to federal income tax in the same amounts and in the same
manner and at the same times as would have been the case if such deposit and defeasance had not
occurred.



               (5) The Company shall have delivered to the Trustee an Officers’ Certificate, stating that the
deposit under clause (1) was not made by the Company with the intent of preferring the Holders of
the Securities of such Series over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the Company.



               (6) The Company shall have delivered to the Trustee an Opinion of Counsel, subject to
customary qualifications, to the effect that after the 91st day following the deposit, no trust
funds will be subject to the effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors’ rights generally or if the Company elects paragraph (c) hereof,
such trust funds will be subject to a first priority lien in favor of the Trustee for the benefit
of the Holders of Securities.



27









 





               (7) The Company has delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel, each
stating that all conditions precedent specified herein relating to
the defeasance contemplated by this Section 8.01 and relating to
the release of any Collateral hereunder and under the Security
Documents have been complied with. In the
event all or any portion of the Securities of a Series are to be redeemed through such irrevocable
trust, the Company must make arrangements satisfactory to the Trustee, at the time of such deposit,
for the giving of the notice of such redemption or redemptions by the Trustee in the name and at
the expense of the Company.



          (e) In addition to the Company’s rights above under this Section 8.01, the Company may
terminate all of its obligations under this Indenture with respect to a Series (subject to Section
8.02), when:



               (1) Either (a) all Securities of such Series that have been previously authenticated (except
lost, stolen or destroyed Securities that have been replaced or paid and Securities for whose
payment funds previously have been deposited in trust or segregated and held in trust by the
Company and are thereafter repaid to the Company or discharged from the trust) have been delivered
to the Trustee for cancellation; or (b) all Securities of such Series that have not been previously
delivered to the Trustee for cancellation (A) have become due and payable; (B) will become due and
payable at their maturity within one year or (C) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of a notice of redemption by the
Trustee, and the Company has irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable U.S.
government obligations or a combination thereof, in such amounts as will be sufficient without
consideration of any reinvestment of interest, to pay and discharge the entire amount due on the
Securities not previously delivered to the Trustee for cancellation for principal and interest on
the Securities to the date of deposit, in the case of Securities that have become due and payable,
or to the stated maturity or redemption date, as the case may be;



               (2) The Company has paid or caused to be paid all other amounts payable hereunder by the
Company;



               (3) The Company has delivered irrevocable instructions to the Trustee to apply the deposited
funds toward the payment of the Securities at maturity or redemption, as the case may be; and



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



Section 8.02. Survival of the Company’s Obligations.




     Notwithstanding the satisfaction and discharge of the Indenture under Section 8.01, the
Company’s obligations under Sections 2.03 through 2.07, 4.01, 7.08, 7.09, 8.04 and 8.05, however,
shall survive until the Securities of an applicable Series are no longer outstanding. Thereafter,
the Company’s obligations under Sections 7.08, 8.04 and 8.05 shall survive (as they relate to such
Series).



28









 





Section 8.03. Application of Trust Funds.




     The Trustee shall hold in trust funds or U.S. government obligations deposited with it
pursuant to Section 8.01. It shall apply the deposited funds and the funds from U.S. government
obligations in accordance with this Indenture to the payment of principal of and interest on the
Securities of the defeased Series.



Section 8.04. Repayment to the Company.




     The Trustee and the Paying Agent promptly shall pay to the Company upon request any excess
funds or securities held by them at any time. The Trustee and the Paying Agent shall pay to the
Company upon request any funds held by them for the payment of principal or interest that remains
unclaimed for two years; 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 a newspaper of general circulation in the City of New York or mail to each such Holder notice
that such funds remain unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication or mailing, any unclaimed balance of such funds then
remaining will be repaid to the Company. After payment to the Company, Securityholders entitled to
the funds must look to the Company for payment as general creditors unless applicable abandoned
property law designates another person, and all liability of the Trustee or such Paying Agent with
respect to such funds shall cease.



Section 8.05. Reinstatement.




     If the Trustee is unable to apply any funds or U.S. government obligations in accordance with
Section 8.01 by reason of any legal proceeding or by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such application, the
Company’s obligations under this Indenture and the Securities relating to the Series shall be
revived and reinstated as though no deposit had occurred pursuant to Section 8.01 until such time
as the Trustee is permitted to apply all such funds or U.S. government obligations in accordance
with Section 8.01; provided, however, that (a) if the Company has made any payment of interest on
or principal of any Securities of the Series because of the reinstatement of their obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to receive such payment
from the funds or U.S. government obligations held by the Trustee, and (b) unless otherwise
required by any legal proceeding or any order or judgment of any court or governmental authority,
the Trustee shall return all such funds or U.S. government obligations to the Company promptly
after receiving a written request therefor at any time, if such reinstatement of the Company’s
obligations has occurred and continues to be in effect.



ARTICLE NINE




AMENDMENTS, SUPPLEMENTS AND WAIVERS




Section 9.01. Without Consent of Holders.




     The Company and the Trustee may amend or supplement this Indenture or the Securities of a
Series without notice to or consent of any Securityholder of such Series to:



29









 






	 	(1)	 	cure any ambiguity, omission, defect or inconsistency;
	 
	 	(2)	 	comply with Article Five;
	 
	 	(3)	 	provide that specific provisions of this Indenture shall not apply to a Series
not previously issued;
	 
	 	(4)	 	create a Series and establish its terms (or to provide for the issuance of
additional Securities of any Series to the extent provided, in accordance with the
provisions set forth in an Authorizing Resolution or supplemental indenture pertaining
to any Series);
	 
	 	(5)	 	provide for uncertificated Securities in addition to or in place of
certificated Securities;
	 
	 	(6)	 	make any change that would provide any additional rights or benefits to the
Holders of Securities or that does not adversely affect the rights under this Indenture
of any such Holder;
	 
	 	(7)	 	evidence and provide for the acceptance of an appointment of a successor
trustee;
	 
	 	(8)	 	add guarantees or collateral security with respect to the Securities of any
Series; and
	 
	 	(9)	 	comply with the requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA.





     After an amendment under this Section 9.01 becomes effective, the Company shall mail notice of
such amendment to the Securityholders.



Section 9.02. With Consent of Holders.




     The Company and the Trustee may amend or supplement this Indenture or the Securities of a
Series without notice to any Securityholder of such Series but with the written consent of the
Holders of at least a majority in principal amount of the outstanding Securities of each such
Series affected by the amendment. Each such Series shall vote as a separate class. The Holders of
a majority in principal amount of the outstanding Securities of any Series may waive compliance by
the Company with any provision of the Securities of such Series or of this Indenture relating to
such Series without notice to any Securityholder. Without the consent of each Securityholder of a
Series affected, however, an amendment, supplement or waiver, including a waiver pursuant to
Section 6.04, may not:




	 	(1)	 	reduce the amount of Securities of such Series whose Holders must consent to an
amendment, supplement or waiver;
	 
	 	(2)	 	reduce the rate of or change the time for payment of interest, including
defaulted interest, on any Security;




30









 






	 	(3)	 	reduce the principal of or change the fixed maturity of any Security or alter
the provisions (including related definitions) with respect to redemption of Securities
pursuant to Article Three or with respect to any obligations on the part of the Company
to offer to purchase or to redeem Securities of a Series pursuant to the Authorizing
Resolution or supplemental indenture pertaining to such Series;
	 
	 	(4)	 	modify the ranking or priority of the Securities of any Series;
	 
	 	(5)	 	make any change in Section 6.04, 6.07 or this 9.02;
	 
	 	(6)	 	waive a continuing Default or Event of Default in the payment of the principal
of or interest on any Security; or
	 
	 	(7)	 	make any Security payable at a place or in funds other than that stated in the
Security, or impair the right of any Securityholder to bring suit as permitted by
Section 6.07.





     An amendment of a provision included solely for the benefit of one or more Series does not
affect the interests of Securityholders of any other Series.



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



Section 9.03. Compliance with Trust Indenture Act.




     Every amendment to or supplement of this Indenture or the Securities shall comply with the TIA
as then in effect.



Section 9.04. Revocation and Effect of Consents.




     A consent to an amendment, supplement or waiver by a Holder shall bind the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same debt as the
consenting Holder’s Security, even if notation of the consent is not made on any Security. Subject
to the following paragraph, any such Holder or subsequent Holder, however, may revoke the consent
as to his Security or portion of a Security. Such revocation shall be effective only if the
Trustee receives the notice of revocation before the date the amendment, supplement or waiver
becomes effective. The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders of Securities of any Series entitled to consent to any
amendment, supplement or waiver, which record date shall be at least ten days prior to the first
solicitation of such consent. If a record date is fixed, then notwithstanding the last sentence of
the immediately preceding paragraph, those Persons who were Holders at such record date or their
duly designated proxies, and only those Persons, shall be entitled to revoke any consent previously
given, whether or not such Persons continue to be Holders after such record date. No such consent
shall be valid or effective for more than 90 days after such record date. After an amendment,
supplement or waiver becomes effective, it shall bind every Holder, unless it makes a change
described in any of clauses (1) through (7) of Section 9.02, in which case, the amendment,
supplement or waiver shall bind only each Holder of a Security who has consented



31









 







to it and every subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder’s Security; provided that any such waiver shall not impair or
affect the right of any Holder to receive payment of principal of and interest on a Security, on or
after the respective due dates expressed in such Security, or to bring suit for the enforcement of
any such payment on or after such respective dates without the consent of such Holder.



Section 9.05. Notation on or Exchange of Securities.




     If an amendment, supplement or waiver changes the terms of a Security, the Company may require
the Holder of the Security to deliver it to the Trustee, at which time the Trustee shall place an
appropriate notation on the Security about the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new Security that reflects the changed
terms.



Section 9.06. Trustee to Sign Amendments, etc.




     Subject to Section 7.02(b), the Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article if the amendment, supplement or waiver does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may
but need not sign it. In signing or refusing to sign such amendment or supplemental indenture, the
Trustee shall be provided with and shall be fully protected in relying upon, an Officers’
Certificate and an Opinion of Counsel as conclusive evidence that such amendment or supplemental
indenture is authorized or permitted by this Indenture, that it is not inconsistent herewith, and
that it will be valid and binding upon the Company in accordance with its terms.



ARTICLE TEN




MISCELLANEOUS




Section 10.01. Trust Indenture Act Controls.




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



Section 10.02. Notices.




     Any order, consent, notice or communication shall be sufficiently given if in writing and
delivered in person or mailed by first class mail, postage prepaid, addressed as follows:



     if to the Company:




Coeur d’Alene Mines Corporation

505 Front Avenue, P.O. Box 1

Coeur d’Alene, Idaho 83816

Attention: Chief Financial Officer



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if to the Trustee:

                    

                    

                    

Facsimile:                     

Attention:                     



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



     Any notice or communication mailed to a Securityholder shall be mailed to him by first class
mail at his address as it appears on the registration books of the Registrar and shall be
sufficiently given to him if so mailed within the time prescribed.



     Failure to mail a notice or communication to a Securityholder or any defect in it shall not
affect its sufficiency with respect to other Securityholders. If a notice or communication is
mailed in the manner provided above, it is duly given, whether or not the addressee receives it
except that notice to the Trustee shall only be effective upon receipt thereof by the Trustee.



     If the Company mails notice or communications to the Securityholders, it shall mail a copy to
the Trustee at the same time.



     The Trustee agrees to accept and act upon instructions or directions pursuant to this
Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic
methods; provided, however, that (a) the party providing such written instructions, subsequent to
such transmission of written instructions, shall provide the originally executed instructions or
directions to the Trustee in a timely manner, and (b) such originally executed instructions or
directions shall be signed by an authorized representative of the party providing such instructions
or directions. If the party elects to give the Trustee e-mail or facsimile instructions (or
instructions by a similar electronic method) and the Trustee in its discretion elects to act upon
such instructions, the Trustee’s understanding of such instructions shall be deemed controlling.
The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly
from the Trustee’s reliance upon and compliance with such instructions notwithstanding such
instructions conflict or are inconsistent with a subsequent written instruction. The party
providing electronic instructions agrees to assume all risks arising out of the use of such
electronic methods to submit instructions and directions to the Trustee, including without
limitation the risk of the Trustee acting on unauthorized instructions, and the risk or
interception and misuse by third parties.



Section 10.03. Communications by Holders with Other Holders.




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



33









 





Section 10.04. Certificate and Opinion as to Conditions Precedent.




     Upon any request or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:




	 	(1)	 	an Officers’ Certificate which shall include the statements set forth in
Section 10.05 stating that, in the opinion of the signers, all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been complied
with;
	 
	 	(2)	 	an Opinion of Counsel which shall include the statements set forth in Section
10.05 stating that, in the opinion of such counsel, all such conditions precedent and
covenants, compliance with which constitutes a condition precedent, if any, provided
for in this Indenture relating to the proposed action or inaction, have been complied
with and that any such action does not conflict with the terms of the Indenture; and
	 
	 	(3)	 	any certificates (which shall include the statements set forth in Section
10.05) required under TIA Section 314(d) in connection therewith.





Section 10.05. Statements Required in Certificate or Opinion.




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




	 	(1)	 	a statement that the person making such certificate or opinion has read such
covenant or condition;
	 
	 	(2)	 	a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate or
opinion are based;
	 
	 	(3)	 	a statement that, in the opinion of such person, he has made such examination
or investigation as is necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
	 
	 	(4)	 	a statement as to whether or not, in the opinion of such person, such condition
or covenant has been complied with.





Section 10.06. Rules by Trustee and Agents.




     The Trustee may make reasonable rules for action by or a meeting of Securityholders. The
Registrar or Paying Agent may make reasonable rules for its functions.



Section 10.07. Legal Holidays.




     A “Legal Holiday” is a Saturday, a Sunday, a legal holiday or a day on which banking
institutions in New York, New York, are not required to be open. If a payment date is a Legal



34









 







Holiday at a place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening period. A Business
Day is any day other than a Legal Holiday.



Section 10.08. Governing Law.




     The laws of the State of New York shall govern this Indenture and the Securities of each
Series.



Section 10.09. Successors and Assigns.




     All covenants and agreements of the Company in this Indenture and the Securities shall bind
its successors and assigns. All agreements of the Trustee in this Indenture shall bind its
successors and assigns.



Section 10.10. Duplicate Originals.




     The parties may sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.



Section 10.11. Severability.




     In case any one or more of the provisions contained in this Indenture or in the Securities of
a Series shall for any reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture
or of such Securities.



Section 10.12. Waiver of Jury Trial.




     EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.



Section 10.13. Force Majeure.




     In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.




Section 10.14. Additional Provisions Relating to Collateral. 




     (a) Beyond the exercise of reasonable care in the custody thereof, the Trustee shall have no
duty as to any Collateral in its possession or control or in the possession or control of any agent
or bailee or any income thereon or as to preservation of rights against prior parties or any other
rights pertaining thereto, and the Trustee shall not be responsible for filing any financing or
continuation statements or recording any documents or instruments in any public office at any time
or times or otherwise perfecting or maintaining the perfection of any security interest in the
Collateral. The Trustee shall be deemed to have exercised reasonable care in the custody of the
Collateral in its possession if the Collateral is accorded treatment substantially equal to that
which it accords its own property and shall not be liable or responsible for any loss or diminution
in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding
agency or other agent or bailee selected by the Trustee in good faith. The Trustee shall not be
responsible for the existence, genuineness or value of any of the Collateral or for the validity,
perfection, priority or enforceability of the liens in any of the Collateral, whether impaired by
operation of law or by reason of any action or omission to act on its part hereunder, except to the
extent such action or omission constitutes gross negligence, bad faith or willful misconduct on the
part of the Trustee, for the validity or sufficiency of the Collateral or any agreement or
assignment contained therein, for the validity of the title of the Company to the Collateral, for
insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the
Collateral or otherwise as to the maintenance of the Collateral. The Trustee shall have no duty to
ascertain or inquire as to the performance or observance of any of the terms of this Indenture or
any Security Documents by the Company, any secured parties or the collateral agent.



     (b) The Trustee is hereby authorized to enter into any applicable Security Documents.



35









 





SIGNATURES




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



	 	 	 	 	 
	Dated:                            	COEUR D’ALENE MINES CORPORATION

 	 
	 	 	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	Dated:                           	                    , as Trustee

 	 
	 	 	 	 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



36









 






	 	 	 	 	 



EXHIBIT A



No.                     



CUSIP No.:                     



[Title of Security]





     COEUR D’ALENE MINES CORPORATION, an Idaho corporation, promises to pay to or registered
assigns the principal sum of [Dollars]/1/ on                      [Title of Security]



     Interest Payment Dates:                      and                     



     Record Dates:                      and                     



     Authenticated:



	 	 	 	 	 
	Dated:                            	Coeur d’Alene Mines Corporation

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	 	 
	 


                    , as Trustee, certifies that this is one of the Securities referred to in the within
mentioned Indenture.




	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Title: 	 
	 	 	Authorized Signatory 	 
	 



 



/1/ Or other currency. Insert corresponding provisions on reverse side of Security in
respect of foreign currency denomination or interest payment requirement.





A-1