exv4w1






EXHIBIT 4.1



 

 



COEUR D’ALENE MINES CORPORATION




DEBT SECURITIES




 






INDENTURE




DATED AS OF                     , 20___




                    ,




TRUSTEE




 

 



 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 
	 	 	 	 	 	 	 	 
	ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE	 	 	1	 
	 

	 	Section 1.01.
	 	Definitions
	 	 	1	 
	 

	 	Section 1.02.
	 	Other Definitions
	 	 	6	 
	 

	 	Section 1.03.
	 	Incorporation by Reference of Trust Indenture Act
	 	 	6	 
	 

	 	Section 1.04.
	 	Rules of Construction
	 	 	7	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE TWO THE SECURITIES	 	 	7	 
	 

	 	Section 2.01.
	 	Form and Dating
	 	 	7	 
	 

	 	Section 2.02.
	 	Execution and Authentication
	 	 	9	 
	 

	 	Section 2.03.
	 	Registrar and Paying Agent
	 	 	9	 
	 

	 	Section 2.04.
	 	Paying Agent to Hold Funds in Trust
	 	 	9	 
	 

	 	Section 2.05.
	 	Securityholder Lists
	 	 	10	 
	 

	 	Section 2.06.
	 	Transfer and Exchange
	 	 	10	 
	 

	 	Section 2.07.
	 	Replacement Securities
	 	 	11	 
	 

	 	Section 2.08.
	 	Outstanding Securities
	 	 	12	 
	 

	 	Section 2.09.
	 	Temporary Securities
	 	 	12	 
	 

	 	Section 2.10.
	 	Cancellation
	 	 	12	 
	 

	 	Section 2.11.
	 	Defaulted Interest
	 	 	12	 
	 

	 	Section 2.12.
	 	Treasury Securities
	 	 	13	 
	 

	 	Section 2.13.
	 	CUSIP Numbers
	 	 	13	 
	 

	 	Section 2.14.
	 	Deposit of Money
	 	 	13	 
	 

	 	Section 2.15.
	 	Book-Entry Provisions for Global Security
	 	 	13	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE THREE REDEMPTION	 	 	14	 
	 

	 	Section 3.01.
	 	Notices to Trustee
	 	 	14	 
	 

	 	Section 3.02.
	 	Selection of Securities to be Redeemed
	 	 	15	 
	 

	 	Section 3.03.
	 	Notice of Redemption
	 	 	15	 
	 

	 	Section 3.04.
	 	Effect of Notice of Redemption
	 	 	15	 
	 

	 	Section 3.05.
	 	Deposit of Redemption Price
	 	 	16	 
	 

	 	Section 3.06.
	 	Securities Redeemed in Part
	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE FOUR COVENANTS	 	 	16	 
	 

	 	Section 4.01.
	 	Payment of Securities
	 	 	16	 
	 

	 	Section 4.02.
	 	Maintenance of Office or Agency
	 	 	16	 
	 

	 	Section 4.03.
	 	Compliance Certificate
	 	 	16	 
	 

	 	Section 4.04.
	 	Maintenance of Corporate Existence
	 	 	17	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE FIVE SUCCESSOR CORPORATION	 	 	17	 
	 

	 	Section 5.01.
	 	When Company May Merge, etc.
	 	 	17	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE SIX DEFAULTS AND REMEDIES	 	 	17	 
	 

	 	Section 6.01.
	 	Events of Default
	 	 	17	 
	 

	 	Section 6.02.
	 	Acceleration
	 	 	19	 






i









 




TABLE OF CONTENTS

(Cont’d)





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 
	 

	 	Section 6.03.
	 	Other Remedies
	 	 	20	 
	 

	 	Section 6.04.
	 	Waiver of Existing Defaults
	 	 	20	 
	 

	 	Section 6.05.
	 	Control by Majority
	 	 	20	 
	 

	 	Section 6.06.
	 	Limitation on Suits
	 	 	20	 
	 

	 	Section 6.07.
	 	Rights of Holders to Receive Payment
	 	 	21	 
	 

	 	Section 6.08.
	 	Collection Suit by Trustee
	 	 	21	 
	 

	 	Section 6.09.
	 	Trustee May File Proofs of Claim
	 	 	21	 
	 

	 	Section 6.10.
	 	Priorities
	 	 	21	 
	 

	 	Section 6.11.
	 	Undertaking for Costs
	 	 	22	 
	 

	 	Section 6.12.
	 	Discontinued, Abandoned or Adverse Proceedings
	 	 	22	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE SEVEN TRUSTEE	 	 	22	 
	 

	 	Section 7.01.
	 	Duties of Trustee
	 	 	22	 
	 

	 	Section 7.02.
	 	Rights of Trustee
	 	 	23	 
	 

	 	Section 7.03.
	 	Individual Rights of Trustee
	 	 	24	 
	 

	 	Section 7.04.
	 	Trustee’s Disclaimer
	 	 	25	 
	 

	 	Section 7.05.
	 	Notice of Defaults
	 	 	25	 
	 

	 	Section 7.06.
	 	Reports by Trustee to Holders
	 	 	25	 
	 

	 	Section 7.07.
	 	Reports by the Company
	 	 	25	 
	 

	 	Section 7.08.
	 	Compensation and Indemnity
	 	 	26	 
	 

	 	Section 7.09.
	 	Replacement of Trustee
	 	 	26	 
	 

	 	Section 7.10.
	 	Successor Trustee by Merger, etc.
	 	 	27	 
	 

	 	Section 7.11.
	 	Eligibility; Disqualification
	 	 	27	 
	 

	 	Section 7.12.
	 	Preferential Collection of Claims Against Company
	 	 	27	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE EIGHT DISCHARGE OF INDENTURE	 	 	27	 
	 

	 	Section 8.01.
	 	Defeasance upon Deposit of Funds or U.S. Government Obligations
	 	 	30	 
	 

	 	Section 8.02.
	 	Survival of the Company’s Obligations
	 	 	30	 
	 

	 	Section 8.03.
	 	Application of Trust Funds
	 	 	30	 
	 

	 	Section 8.04.
	 	Repayment to the Company
	 	 	31	 
	 

	 	Section 8.05.
	 	Reinstatement
	 	 	31	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE NINE AMENDMENTS, SUPPLEMENTS AND WAIVERS	 	 	31	 
	 

	 	Section 9.01.
	 	Without Consent of Holders
	 	 	31	 
	 

	 	Section 9.02.
	 	With Consent of Holders
	 	 	32	 
	 

	 	Section 9.03.
	 	Compliance with Trust Indenture Act
	 	 	33	 
	 

	 	Section 9.04.
	 	Revocation and Effect of Consents
	 	 	33	 
	 

	 	Section 9.05.
	 	Notation on or Exchange of Securities
	 	 	33	 
	 

	 	Section 9.06.
	 	Trustee to Sign Amendments, etc.
	 	 	33	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE TEN MISCELLANEOUS	 	 	34	 
	 

	 	Section 10.01.
	 	Trust Indenture Act Controls
	 	 	34	 
	 

	 	Section 10.02.
	 	Notices	 	 	34	 
	 

	 	Section 10.03.
	 	Communications by Holders with Other Holders
	 	 	35	 
	 

	 	Section 10.04.
	 	Certificate and Opinion as to Conditions Precedent
	 	 	35	 






ii









 




TABLE OF CONTENTS

(Cont’d)




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page
	 
	 

	 	Section 10.05.
	 	Statements Required in Certificate or Opinion
	 	 	35	 
	 

	 	Section 10.06.
	 	Rules by Trustee and Agents
	 	 	36	 
	 

	 	Section 10.07.
	 	Legal Holidays
	 	 	36	 
	 

	 	Section 10.08.
	 	Governing Law
	 	 	36	 
	 

	 	Section 10.09.
	 	Successors and Assigns
	 	 	36	 
	 

	 	Section 10.10.
	 	Duplicate Originals
	 	 	36	 
	 

	 	Section 10.11.
	 	Severability
	 	 	36	 
	 

	 	Section 10.12.
	 	Waiver of Jury Trial
	 	 	37	 
	 

	 	Section 10.13.
	 	Force Majeure
	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE ELEVEN SUBORDINATION OF SECURITIES	 	 	37	 
	 

	 	Section 11.01.
	 	Securities Subordinated to Senior Indebtedness
	 	 	37	 
	 

	 	Section 11.02.
	 	No Payment on Securities in Certain Circumstances
	 	 	37	 
	 

	 	Section 11.03.
	 	Payment Over of Proceeds upon Dissolution, etc.
	 	 	38	 
	 

	 	Section 11.04.
	 	Subrogation
	 	 	40	 
	 

	 	Section 11.05.
	 	Obligations of Company Unconditional
	 	 	40	 
	 

	 	Section 11.06.
	 	Notice to Trustee
	 	 	41	 
	 

	 	Section 11.07.
	 	Reliance on Judicial Order or
Certificate of Liquidating Agent. —
	 	 	41	 
	 

	 	Section 11.08.
	 	Trustee’s Relation to Senior Indebtedness
	 	 	42	 
	 

	 	Section 11.09.
	 	Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders of Senior Indebtedness	 	 	42	 
	 

	 	Section 11.10.
	 	Securityholders Authorize Trustee To Effectuate Subordination of Securities
	 	 	42	 
	 

	 	Section 11.11.
	 	This Article Not to Prevent Events of Default
	 	 	42	 
	 

	 	Section 11.12.
	 	Trustee’s Compensation Not Prejudiced
	 	 	43	 
	 

	 	Section 11.13.
	 	No Waiver of Subordination Provisions
	 	 	43	 
	 

	 	Section 11.14.
	 	Certain Payments May Be Paid Prior to Dissolution
	 	 	43	 






iii









 






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)

	 	 	7.06	 
	(c)

	 	 	10.02	 
	(d)

	 	 	7.06	 
	314(a)

	 	 	4.03; 7.07; 10.02	 
	(b)

	 	 	N.A.	 
	(c)(1)

	 	 	10.04	 
	(c)(2)

	 	 	10.04	 
	(c)(3)

	 	 	N.A.	 
	(d)

	 	 	N.A.	 
	(e)

	 	 	10.05	 
	314(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.


iv









 





     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.



     “Capitalized Lease Obligations” of any Person means the obligations of such Person to pay rent
or other amounts under a lease that is required to be capitalized for financial reporting purposes
in accordance with GAAP, and the amount of such obligations will be the capitalized amount thereof
determined in accordance with GAAP.



     “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).



1









 





     “Credit Agreement” means any credit agreement or other debt facilities, in each case with
banks or other institutional lenders or investors providing for revolving credit loans, term loans,
debt securities, receivables financing (including through the sale of receivables to such lenders
or to special purpose entities formed to borrow from such lenders against such receivables) or
letters of credit, including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, and in each case as amended, modified, renewed,
refunded, replaced, restructured or refinanced in whole or in part from time to time (whether with
the original agent and lenders or other agents and lenders or otherwise, and whether provided under
the original credit agreement or debt documents or other credit agreements or debt documents).



     “Currency Agreement” of any Person means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement designed to protect such Person or any of its
Subsidiaries against fluctuations in currency values.



     “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.



     “Designated Senior Indebtedness” means (i) any Indebtedness outstanding under any Credit
Agreement and (ii) any other Senior Indebtedness permitted under this Indenture the principal
amount of which is $25.0 million or more and that has been designated in the agreement or
instrument governing such Senior Indebtedness as “Designated Senior Indebtedness;” provided that an
Authorizing Resolution setting forth such designation by the Company has been filed with the
Trustee (provided that such agreement or instrument may place limitations and conditions on the
right of holders of such Senior Indebtedness to exercise the rights of Designated Senior
Indebtedness).



     “Disqualified Stock” means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each case at the option
of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the
holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the
date on which the Securities mature. Notwithstanding the preceding sentence, any Capital Stock
that would constitute Disqualified Stock solely because the holders of the Capital Stock have the
right to require the Company to repurchase such Capital Stock upon the occurrence of a change of
control or an asset sale shall not constitute Disqualified Stock if the terms of such Capital Stock
provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such
provisions unless such repurchase or redemption complies with any applicable covenant in this
Indenture.



     “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.



2









 





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



     “Indebtedness” means (without duplication), with respect to any specified Person, any
indebtedness of such Person, whether or not contingent, (i) in respect of borrowed money; (ii)
evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof); (iii) in respect of banker’s acceptances; (iv) representing
Capitalized Lease Obligations; (v) representing the balance deferred and unpaid of the purchase
price of any property, except any such balance that constitutes an accrued expense or trade
payable; (vi) all obligations of such Person with respect to the redemption, repayment or other
repurchase of any Disqualified Stock or, with respect to any Subsidiary, any preferred stock (but
excluding, in each case, any accrued dividends);or (vii) representing any obligations of such
Person under any Currency Agreement or Interest Protection Agreement, if and to the extent any of
the foregoing indebtedness (other than letters of credit and obligations under Currency Agreements
or Interest Protection Agreements) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes
all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not
such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included,
the guarantee by the specified Person of any Indebtedness of any other Person. The amount of any
Indebtedness outstanding as of any date shall be: (1) the accreted value of the Indebtedness, in
the case of any Indebtedness issued with original issue discount; (2) in the case of any
Disqualified Stock or preferred stock, the repurchase price calculated in accordance with the terms
of such Disqualified Stock or preferred stock as if such Disqualified Stock or preferred stock were
repurchased on the date on which Indebtedness is required to be determined pursuant to this
Indenture; provided that if such Disqualified Stock or preferred stock is not then
permitted to be repurchased, the book value of Disqualified Stock or preferred stock; (3) in the
case of Indebtedness of others secured by a Lien on any asset of the specified Person, the lesser
of (A) the fair market value of such asset on the date on which Indebtedness is required to be
determined pursuant to this Indenture and (B) the amount of the Indebtedness so secured; (4) in the
case of the guarantee by the specified Person of any Indebtedness of any other Person, the maximum
liability to which the specified Person may be subject upon the occurrence of the contingency
giving rise to the obligation; (5) in the case of any obligations under any Currency Agreement or
Interest Protection Agreement, the net amount payable if such obligations were terminated at that
time due to default by such Person (after giving effect to any contractually permitted set-off);
and (6) the principal amount of the Indebtedness, together with any interest on the Indebtedness
that is more than 30 days past due, in the case of any other Indebtedness.



     “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.



     “Insolvency or Liquidation Proceeding” means, with respect to any Person, any liquidation,
dissolution or winding up of such Person, or any bankruptcy, reorganization, insolvency,
receivership or similar proceeding with respect to such Person, whether voluntary or involuntary.



3









 





     “Interest Protection Agreement” of any Person means any interest rate swap agreement, interest
rate collar agreement, option or futures contract or other similar agreement or arrangement
designed to protect such Person or any of its Subsidiaries against fluctuations in interest rates
with respect to Indebtedness permitted to be incurred under this Indenture.



     “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.



     “Permitted Junior Securities” means any securities of the Company or any other Person that are
(i) equity securities or (ii) subordinated in right of payment to all Senior Indebtedness that may
at the time be outstanding, to substantially the same extent as, or to a greater extent than, the
Securities are subordinated as provided in this Indenture, in any event pursuant to a court order
so providing and as to which (a) the rate of interest on such securities shall not exceed the
effective rate of interest on the Securities on the date of this Indenture, (b) such securities
shall not be entitled to the benefits of covenants or defaults materially more beneficial to the
holders of such securities than those in effect with respect to the Securities on the date of this
Indenture and (c) such securities shall not provide for amortization (including sinking fund and
mandatory prepayment provisions) commencing prior to the date six months following the final
scheduled maturity date of the Senior Indebtedness (as modified by the plan of reorganization or
readjustment pursuant to which such securities are issued).



     “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.



     “Post-Petition Interest” means, with respect to any Senior Indebtedness of any Person, all
interest accrued or accruing on such Indebtedness after the commencement of any Insolvency or
Liquidation Proceeding against such Person in accordance with and at the contract rate (including,
without limitation, any rate applicable upon default) specified in the agreement or instrument
creating, evidencing or governing such Indebtedness, whether or not, pursuant to applicable law or
otherwise, the claim for such interest is allowed as a claim in such Insolvency or Liquidation
Proceeding.



4









 





     “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.



     “Senior Indebtedness” means: (i) all Indebtedness and other monetary obligations (whether now
existing or hereafter incurred) of the Company on, under or in respect of, any Credit Agreement and
including all fees, expenses (including reasonable fees and expenses of counsel), claims, charges,
indemnity obligations and interest accruing on or subsequent to the filing of a petition initiating
any Insolvency or Liquidation Proceeding whether or not such interest is an allowed claim in such
proceeding; (ii) all other Indebtedness of the Company (other than the Securities), whether
presently outstanding or hereafter created, incurred or assumed, unless such Indebtedness, by the
terms of the agreement or instrument creating or evidencing such Indebtedness expressly provides
that it is subordinate in right of payment to or pari passu in right of payment with the Securities
and (iii) the obligations of the Company incurred in the normal course of business and not for
speculative purposes under any Currency Agreement or Interest Protection Agreement.
Notwithstanding the foregoing, the term “Senior Indebtedness” shall not include: (a) any
Indebtedness of the Company which when incurred and without respect to any election under Section
1111(b) of the Bankruptcy Code, was without recourse to the Company; (b) any Indebtedness of the
Company to any of its Subsidiaries; (c) any Indebtedness to any Affiliate or employee of the
Company; (d) that portion of any Indebtedness of the Company that is incurred in violation of this
Indenture; (e) to the extent it may constitute Indebtedness, any obligation for federal, state,
local or other taxes; and (f) to the extent it may constitute Indebtedness, any trade payables.



     “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



5









 




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	 
	“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.



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     “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
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;




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          (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;




          (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 ;




          (24) whether the Securities of such series are subject to subordination and the terms of such
subordination; and




8









 








          (25) 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.



     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.



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     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 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.




10









 








          (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 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.




11









 








          (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, 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



12









 




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.



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,




13









 







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 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



14









 




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 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.



15









 





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



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.




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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.



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:



     (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, whether or
not such payment is prohibited by Article Eleven hereof;



     (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, whether or not such
payment is prohibited by Article Eleven hereof;



17









 





     (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 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



18









 




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 sub-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 clause (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 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.




19









 








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;




          (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;




20









 








          (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.



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;




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     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.



          (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



22









 







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.



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



23









 







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 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.



24









 





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
determines 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.



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,



25









 







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 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.



26









 





     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.



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, subject to the provisions of Article Eleven hereof, 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 (hereinafter, “Legal Defeasance”). For this purpose, such Legal Defeasance
means that the Company shall be deemed to have paid and discharged the entire Indebtedness
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



27









 







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.



          (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.



28









 





               (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; and



               (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 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



29









 







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 due 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 and 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).



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



30









 







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:



          (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;



31









 





          (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; 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;



          (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.



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     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 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



33









 







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




     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.



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     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).



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; and



          (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.



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;



35









 





          (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
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.




36












 





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.



ARTICLE ELEVEN




SUBORDINATION OF SECURITIES



Section 11.01. Securities Subordinated to Senior Indebtedness.




     In the event a series of Securities is designated as subordinated pursuant to Section 2.01(24)
and except as otherwise provided in an Authorizing Resolution or supplemental indenture, the
Company covenants and agrees, and the Trustee and each Holder of such subordinated Securities by
his acceptance thereof likewise covenant and agree, that all such subordinated Securities shall be
issued subject to the provisions of this Article Eleven; and each person holding any such
subordinated Security, whether upon original issue or upon transfer, assignment or exchange
thereof, accepts and agrees that all payments of the principal of and interest on such Securities
by the Company shall, to the extent and in the manner set forth in this Article Eleven, be
subordinated and junior in right of payment to the prior payment in full in cash of all amounts
payable under Senior Indebtedness. In the event a series of Securities is not designated as
subordinated pursuant to Section 2.01(24), this Article Eleven shall have no effect upon such
Securities.



Section 11.02. No Payment on Securities in Certain Circumstances.




          (a) No direct or indirect payment (excluding any payment or distribution of Permitted Junior
Securities) by or on behalf of the Company of principal of, premium, if any, or interest on the
Securities or to repurchase any of the Securities, except from those funds held in trust for the
benefit of Holders of any Securities pursuant to the procedures set forth in Article Eight hereof,
whether pursuant to the terms of the Securities, upon acceleration or otherwise, shall be made if,
at the time of such payment, there exists a default in the payment of all or any portion of the
obligations on any Senior Indebtedness, when the same becomes due and payable beyond any applicable period of grace whether at maturity, on account of mandatory redemption




37









 







or prepayment, acceleration or otherwise, and such default shall not have been cured or waived or
the benefits of this sentence waived by or on behalf of the holders of such Senior Indebtedness.
In addition, during the continuance of any non-payment event of default with respect to any
Designated Senior Indebtedness pursuant to which the maturity thereof may be immediately
accelerated, and upon receipt by the Trustee of written notice (a “Payment Blockage Notice”) from
the Company or any holder or holders of such Designated Senior Indebtedness or the trustee or agent
acting on behalf of such Designated Senior Indebtedness, then, unless and until such event of
default has been cured or waived or has ceased to exist or such Designated Senior Indebtedness has
been discharged or repaid in full in cash or the benefits of these provisions have been waived by
the holders of such Designated Senior Indebtedness, no direct or indirect payment (excluding any
payment or distribution of Permitted Junior Securities) shall be made by or on behalf of the
Company of principal of, premium, if any, or interest on the Securities or to repurchase any of the
Securities, except from those funds held in trust for the benefit of Holders of any Securities
pursuant to the procedures set forth in Article Eight hereof, to such Holders, during a period (a
“Payment Blockage Period”) commencing on the date of receipt of such notice by the Trustee and
ending 179 days thereafter.




     Notwithstanding anything herein or in the Securities to the contrary, (x) in no event shall a
Payment Blockage Period extend beyond 179 days from the date the Payment Blockage Notice in respect
thereof was given (provided that payment may thereafter be restricted if a payment event of default
has occurred), (y) there shall be a period of at least 181 consecutive days in each 360-day period
when no Payment Blockage Period is in effect and (z) not more than one Payment Blockage Period may
be commenced with respect to the Securities during any period of 360 consecutive days. No event of
default that existed or was continuing on the date of commencement of any Payment Blockage Period
with respect to the Designated Senior Indebtedness initiating such Payment Blockage Period may be,
or be made, the basis for the commencement of any other Payment Blockage Period by the holder or
holders of such Designated Senior Indebtedness or the trustee or agent acting on behalf of such
Designated Senior Indebtedness, whether or not within a period of 360 consecutive days, unless such
event of default has been cured or waived for a period of not less than 90 consecutive days.



          (b) In the event that, notwithstanding the foregoing, any payment shall be received by the
Trustee or any Holder when such payment is prohibited by Section 11.02(a), such payment shall be
held in trust for the benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders) or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness may have been
issued, as their respective interests may appear, or, to the extent such Senior Indebtedness is not
then due and payable, to the Company.




Section 11.03. Payment Over of Proceeds upon Dissolution, etc.




          (a) Upon any payment or distribution of assets or securities of the Company of any kind or
character, whether in cash, property or securities (excluding any payment or distribution of
Permitted Junior Securities), upon any dissolution or winding up or liquidation or reorganization
of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, all Senior Indebtedness shall first be paid in full in cash
before




38









 







the Holders of the Securities or the Trustee on behalf of such Holders shall be entitled to
receive any payment by the Company of the principal of or interest on the Securities, or any
payment by the Company to acquire any of the Securities for cash, property or securities, or any
distribution with respect to the Securities of any cash, property or securities (excluding any
payment or distribution of Permitted Junior Securities or from funds held in trust for the benefit
of Holders of any Securities pursuant to the procedures set forth in Article Eight hereof). Before
any payment may be made by, or on behalf of, the Company of the principal of or interest on the
Securities upon any such dissolution or winding up or liquidation or reorganization, any payment or
distribution of assets or securities of the Company of any kind or character, whether in cash,
property or securities (excluding any payment or distribution of Permitted Junior Securities or
from funds held in trust for the benefit of Holders of any Securities pursuant to the procedures
set forth in Article Eight hereof), to which the Holders of the Securities or the Trustee on their
behalf would be entitled, but for the subordination provisions of this Indenture, shall be made by
the Company or by any receiver, trustee in bankruptcy, liquidation trustee, agent or other Person
making such payment or distribution, directly to the holders of the Senior Indebtedness (pro rata
to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders)
or their representatives or to the trustee or trustees or agent or agents under any agreement or
indenture pursuant to which any of such Senior Indebtedness may have been issued, as their
respective interests may appear, to the extent necessary to pay all such Senior Indebtedness in
full in cash after giving effect to any prior or concurrent payment, distribution or provision
therefor to or for the holders of such Senior Indebtedness.




          (b) In the event that, notwithstanding the foregoing provision prohibiting such payment or
distribution, any payment or distribution of assets or securities of the Company of any kind or
character, whether in cash, property or securities (excluding any payment or distribution of
Permitted Junior Securities or from funds held in trust for the benefit of Holders of any
Securities pursuant to the procedures set forth in Article Eight hereof), shall be received by the
Trustee or any Holder of Securities at a time when such payment or distribution is prohibited by
Section 11.03(a) and before all obligations in respect of Senior Indebtedness are paid in full in
cash, such payment or distribution shall be received and held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Indebtedness (pro rata to such holders on
the basis of the respective amounts of Senior Indebtedness held by such holders) or their
respective representatives, or to the trustee or trustees or agent or agents under any indenture
pursuant to which any of such Senior Indebtedness may have been issued, as their respective
interests may appear, for application to the payment of Senior Indebtedness remaining unpaid until
all such Senior Indebtedness has been paid in full in cash after giving effect to any prior or
concurrent payment, distribution or provision therefor to or for the holders of such Senior
Indebtedness.




     The consolidation of the Company with, or the merger of the Company with or into, another
corporation or the liquidation or dissolution of the Company following the conveyance or transfer
of its property as an entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided in Article Five (or any replacement provisions as contemplated by
Article Five) shall not be deemed a dissolution, winding up, liquidation or reorganization for the
purposes of this Section 11.03 if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in
Article Five (or any replacement provisions as contemplated by Article Five).



39









 





Section 11.04. Subrogation.




     Upon the payment in full in cash of all Senior Indebtedness, or provision for payment in other
than cash is accepted by the holders of Senior Indebtedness in full satisfaction of amounts due in
respect of all Senior Indebtedness, the Holders of the Securities shall be subrogated to the rights
of the holders of Senior Indebtedness to receive payments or distributions of cash, property or
securities of the Company made on such Senior Indebtedness until the principal of and interest on
the Securities shall be paid in full in cash; and, for the purposes of such subrogation, no
payments or distributions to the holders of the Senior Indebtedness of any cash, property or
securities to which the Holders of the Securities or the Trustee on their behalf would be entitled
except for the provisions of this Article Eleven, and no payment over pursuant to the provisions of
this Article Eleven to the holders of Senior Indebtedness by Holders of the Securities or the
Trustee on their behalf shall, as between the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment by the Company to or on
account of the Senior Indebtedness. It is understood that the provisions of this Article Eleven
are and are intended solely for the purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of the Senior Indebtedness, on the other hand. If any
payment or distribution to which the Holders of the Securities would otherwise have been entitled
but for the provisions of this Article Eleven shall have been applied, pursuant to the provisions
of this Article Eleven, to the payment of all amounts payable under Senior Indebtedness, then and
in such case, the Holders of the Securities shall be entitled to receive from the holders of such
Senior Indebtedness any payments or distributions received by such holders of Senior Indebtedness
in excess of the amount required to make payment in full in cash.



Section 11.05. Obligations of Company Unconditional.




     Nothing contained in this Article Eleven or elsewhere in this Indenture or in the Securities
is intended to or shall impair, as among the Company and the Holders of the Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the Holders of the
Securities the principal of and interest on the Securities as and when the same shall become due
and payable in accordance with their terms, or is intended to or shall affect the relative rights
of the Holders of the Securities and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Holder of any Security or the
Trustee on their behalf from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article Eleven of the
holders of the Senior Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy. Without limiting the generality of the foregoing,
nothing contained in this Article Eleven shall restrict the right of the Trustee or the Holders of
Securities to take any action to declare the Securities to be due and payable prior to their stated
maturity pursuant to Section 6.01 or to pursue any rights or remedies hereunder; provided, however,
that all Senior Indebtedness then due and payable shall first be paid in full in cash (and no
Payment Blockage Period shall be in effect) before the Holders of the Securities or the Trustee are entitled to receive any direct or indirect payment from the Company of
principal of or interest on the Securities.



40









 





Section 11.06. Notice to Trustee.




     The Company shall give prompt written notice to the Trustee of any fact known to the Company
which would prohibit the making of any payment to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article Eleven. The Trustee shall not be charged with knowledge
of the existence of any event of default with respect to any Senior Indebtedness or of any other
facts which would prohibit the making of any payment to or by the Trustee unless and until the
Trustee shall have received notice in writing at its Corporate Trust Office to that effect signed
by an Officer of the Company, or by a holder of Senior Indebtedness or trustee or agent therefor;
and prior to the receipt of any such written notice, the Trustee shall, subject to Article Seven,
be entitled to assume that no such facts exist; provided that if the Trustee shall not have
received the notice provided for in this Section 11.06 at least two Business Days prior to the date
upon which by the terms of this Indenture any funds shall become payable for any purpose
(including, without limitation, the payment of the principal of or interest on any Security), then,
regardless of anything herein to the contrary, the Trustee shall have full power and authority to
receive any funds from the Company and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be received by it on or
after such prior date. Nothing contained in this Section 11.06 shall limit the right of the
holders of Senior Indebtedness to recover payments as contemplated by Section 11.03. The Trustee
shall be entitled to rely on the delivery to it of a written notice by a Person representing
himself or itself to be a holder of any Senior Indebtedness (or a trustee on behalf of, or other
representative of, such holder) to establish that such notice has been given by a holder of such
Senior Indebtedness or a trustee or representative on behalf of any such holder. In the event that
the Trustee determines in good faith that any evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Eleven, the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent
to which such Person is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article Eleven, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial determination as to
the right of such Person to receive such payment.



Section 11.07.
Reliance on Judicial Order or Certificate of Liquidating
Agent.




     Upon any payment or distribution of assets or securities referred to in this Article Eleven,
the Trustee and the Holders of the Securities shall be entitled to rely upon any order or decree
made by any court of competent jurisdiction in which bankruptcy, dissolution, winding-up,
liquidation or reorganization proceedings are pending, or upon a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of the Securities for the purpose of
ascertaining the persons entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this
Article Eleven.



41









 





Section 11.08. Trustee’s Relation to Senior Indebtedness.




     The Trustee and any Paying Agent shall be entitled to all the rights set forth in this Article
Eleven with respect to any Senior Indebtedness which may at any time be held by it in its
individual or any other capacity to the same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee or any Paying Agent of any of its rights as
such holder.



     With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to
observe only such of its covenants and obligations as are specifically set forth in this Article
Eleven, and no implied covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness. The Trustee shall not be liable to any such
holders if the Trustee shall in good faith mistakenly pay over or distribute to Holders of
Securities or to the Company or to any other person cash, property or securities to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article Eleven or otherwise.



Section 11.09. Subordination Rights Not Impaired by Acts or Omissions of the Company or
Holders of Senior Indebtedness.




     No right of any present or future holders of any Senior Indebtedness to enforce subordination
as provided herein shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with. The provisions of
this Article Eleven are intended to be for the benefit of, and shall be enforceable directly by,
the holders of Senior Indebtedness.



Section 11.10. Securityholders Authorize Trustee To Effectuate Subordination of
Securities.




     Each Holder of Securities by his acceptance of such Securities authorizes and expressly
directs the Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article Eleven, and appoints the Trustee his
attorney-in-fact for such purposes, including, in the event of any dissolution, winding-up,
liquidation or reorganization of the Company (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for the benefit of creditors or
otherwise) tending towards liquidation of the business and assets of the Company, the filing of a
claim for the unpaid balance of its or his Securities in the form required in those proceedings.



Section 11.11. This Article Not to Prevent Events of Default.




     The failure to make a payment on account of principal of or interest on the Securities by
reason of any provision of this Article Eleven shall not be construed as preventing the occurrence
of an Event of Default specified in clause (1) or (2) of Section 6.01.



42









 





Section 11.12. Trustee’s Compensation Not Prejudiced.




     Nothing in this Article Eleven shall apply to amounts due to the Trustee pursuant to Section
7.08 or any other sections in this Indenture.



Section 11.13. No Waiver of Subordination Provisions.




     Without in any way limiting the generality of Section 11.09, the holders of Senior
Indebtedness may, at any time and from time to time, without the consent of or notice to the
Trustee or the Holders of the Securities, without incurring responsibility to the Holders of the
Securities and without impairing or releasing the subordination provided in this Article Eleven or
the obligations hereunder of the Holders of the Securities to the holders of Senior Indebtedness,
do any one or more of the following: (a) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Senior Indebtedness or any instrument evidencing the same or
any agreement under which Senior Indebtedness is outstanding or secured; (b) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (c) release any Person liable in any manner for the collection of Senior
Indebtedness; and (d) exercise or refrain from exercising any rights against the Company and any
other Person.



Section 11.14. Certain Payments May Be Paid Prior to Dissolution.




     All funds and United States government obligations properly deposited in trust with the
Trustee pursuant to and in accordance with Article Eight shall be for the sole benefit of the
Holders and shall not be subject to this Article Eleven (so long as the funding of such trust did
not violate the provisions of this Article Eleven).



     Nothing contained in this Article Eleven or elsewhere in this Indenture shall prevent (i) the
Company, except under the conditions described in Section 11.02, Section 11.03 or Section 11.05,
from making payments of principal of and interest on the Securities, or from depositing with the
Trustee any fimds for such payments or from effecting a termination of the Company’s obligations
under the Securities and this Indenture as provided in Article Eight, (ii) the application by the
Trustee of any funds properly deposited in trust with the Trustee pursuant to and in accordance
with Article Eight (so long as the funding of such trust did not violate the provisions of this
Article Eleven) or (iii) the application by the Trustee of any other funds deposited with it for
the purpose of making such payments of principal of on and interest on the Securities to the
holders entitled thereto unless at least two Business Days prior to the date upon which such
payment becomes due and payable, the Trustee shall have received the written notice provided for in
Section 11.06. The Company shall give prompt written notice to the Trustee of any dissolution,
winding up, liquidation or reorganization of the Company.



43









 





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:  	 	 



44









 






	 	 	 	 	 



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