exv4w2






Exhibit 4.2




COEUR D’ALENE MINES CORPORATION




AND




[                                      ]




as Trustee




Senior Debt Securities




INDENTURE




Dated as of                                         , 20          




 









 





CROSS REFERENCE SHEET *




     Provisions of Sections 310 through 318(a) inclusive of the Trust Indenture Act of 1939, as
amended, and the Indenture dated as of                                          , 20           between Coeur d’Alene Mines Corporation and
[———] as Trustee.



	 	 	 
	Section	 	Section
	of	 	of
	Trust Indenture Act	 	Indenture
	310(a)(1)
	 	6.10
	310(a)(2)
	 	6.10
	310(a)(3)
	 	N/A
	310(a)(4)
	 	N/A
	310(a)(5)
	 	6.10
	310(b)
	 	6.10
	310(c)
	 	N/A
	311(a)
	 	6.11
	311(b)
	 	6.11
	311(c)
	 	N/A
	312(a)
	 	4.01
	312(b)
	 	4.02(b)
	312(c)
	 	4.02(c)
	313(a)
	 	6.06
	313(b)
	 	6.06
	313(c)
	 	6.06
	313(d)
	 	6.06
	314(a)
	 	3.04; 4.03
	314(b)
	 	N/A
	314(c)(1)
	 	2.04; 13.06
	314(c)(2)
	 	2.04; 13.06
	314(c)(3)
	 	N/A
	314(d)
	 	N/A
	314(e)
	 	13.06
	314(f)
	 	N/A
	315(a)
	 	6.01(b)
	315(b)
	 	6.05
	315(c)
	 	6.01(a)
	315(d)
	 	6.01(c)
	315(e)
	 	5.10
	316(a)(1)(A)
	 	5.08
	316(a)(1)(B)
	 	5.09
	316(a)(2)
	 	N/A
	316(b)
	 	5.06
	316(c)
	 	2.07
	317(a)
	 	5.02
	317(b)
	 	3.03
	318(a)
	 	13.08








 




			
	*	 	This cross reference sheet shall not, for any purpose, be deemed to be a part of the Indenture.




 









 










     Attention should also be directed to Section 318(c) of the Trust Indenture Act of 1939, as
amended, which provides that the provisions of Sections 310 through 317 of such Act are a part of
and govern every qualified indenture, whether or not physically contained therein.




 









 








TABLE OF CONTENTS




	 	 	 	 	 
	RECITALS
	 	 	1	 
	 
	 	 	 	 
	ARTICLE 1 DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.01. Certain Terms Defined
	 	 	1	 
	 
	 	 	 	 
	ARTICLE 2 SECURITIES
	 	 	5	 
	 
	 	 	 	 
	SECTION 2.01. Forms Generally
	 	 	5	 
	SECTION 2.02. Form of Trustee’s Certificate of Authentication
	 	 	6	 
	SECTION 2.03. Amount Unlimited; Issuable in Series
	 	 	6	 
	SECTION 2.04. Authentication and Delivery of Securities
	 	 	8	 
	SECTION 2.05. Execution of Securities
	 	 	9	 
	SECTION 2.06. Certificate of Authentication
	 	 	10	 
	SECTION 2.07. Denomination and Date of Securities; Payments of Interest
	 	 	10	 
	SECTION 2.08. Registration, Registration of Transfer and Exchange
	 	 	11	 
	SECTION 2.09. Trustee’s Duties to Monitor Compliance
	 	 	12	 
	SECTION 2.10. Mutilated, Defaced, Destroyed, Lost and Stolen Securities
	 	 	12	 
	SECTION 2.11. Cancellation of Securities
	 	 	13	 
	SECTION 2.12. Temporary Securities
	 	 	13	 
	SECTION 2.13. Securities in Global Form
	 	 	14	 
	SECTION 2.14. CUSIP Numbers
	 	 	15	 
	 
	 	 	 	 
	ARTICLE 3 COVENANTS OF THE COMPANY
	 	 	15	 
	 
	 	 	 	 
	SECTION 3.01. Payment of Principal and Interest
	 	 	15	 
	SECTION 3.02. Offices for Payment, Etc.
	 	 	15	 
	SECTION 3.03. Paying Agents
	 	 	15	 
	SECTION 3.04. Officers’ Certificate
	 	 	16	 
	SECTION 3.05. Calculation of Original Issue Discount
	 	 	16	 
	 
	 	 	 	 
	ARTICLE 4 HOLDERS’ LISTS AND REPORTS BY THE COMPANY
	 	 	16	 
	 
	 	 	 	 
	SECTION 4.01. Company to Furnish Trustee Information as to Names and
Addresses of Holders
	 	 	16	 
	SECTION 4.02. Preservation and Disclosure of Holders’ Lists
	 	 	17	 
	SECTION 4.03. Reports by the Company
	 	 	17	 
	 
	 	 	 	 
	ARTICLE 5 REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT
	 	 	17	 
	 
	 	 	 	 
	SECTION 5.01. Event of Default Defined; Acceleration of Maturity; Waiver of Default
	 	 	17	 
	SECTION 5.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt
	 	 	20	 
	SECTION 5.03. Application of Proceeds
	 	 	22	 
	SECTION 5.04. Restoration of Rights on Abandonment of Proceedings
	 	 	22	 
	SECTION 5.05. Limitations on Suits by Holders
	 	 	22	 
	SECTION 5.06. Unconditional Right of Holders to Institute Certain Suits
	 	 	23	 
	SECTION 5.07. Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default
	 	 	23	 






i









 






	 	 	 	 	 
	SECTION 5.08. Control by Holders
	 	 	23	 
	SECTION 5.09. Waiver of Past Defaults
	 	 	23	 
	SECTION 5.10. Right of Court to Require Filing of Undertaking to Pay Costs
	 	 	24	 
	SECTION 5.11. Suits for Enforcement
	 	 	24	 
	 
	 	 	 	 
	ARTICLE 6 CONCERNING THE TRUSTEE
	 	 	24	 
	 
	 	 	 	 
	SECTION 6.01. Duties of Trustee
	 	 	24	 
	SECTION 6.02. Rights of Trustee
	 	 	25	 
	SECTION 6.03. Individual Rights of Trustee
	 	 	27	 
	SECTION 6.04. Trustee’s Disclaimer
	 	 	27	 
	SECTION 6.05. Notice of Defaults
	 	 	27	 
	SECTION 6.06. Reports by Trustee to Holders
	 	 	27	 
	SECTION 6.07. Compensation and Indemnity
	 	 	28	 
	SECTION 6.08. Replacement of Trustee
	 	 	28	 
	SECTION 6.09. Successor Trustee by Merger
	 	 	29	 
	SECTION 6.10. Eligibility; Disqualification
	 	 	29	 
	SECTION 6.11. Preferential Collection of Claims Against Company
	 	 	29	 
	 
	 	 	 	 
	ARTICLE 7 CONCERNING THE HOLDERS
	 	 	30	 
	 
	 	 	 	 
	SECTION 7.01. Evidence of Action Taken by Holders
	 	 	30	 
	SECTION 7.02. Proof of Execution of Instruments
	 	 	30	 
	SECTION 7.03. Holders to Be Treated as Owners
	 	 	30	 
	SECTION 7.04. Securities Owned by Company Deemed Not Outstanding
	 	 	30	 
	SECTION 7.05. Right of Revocation of Action Taken
	 	 	31	 
	 
	 	 	 	 
	ARTICLE 8 SUPPLEMENTAL INDENTURES
	 	 	31	 
	 
	 	 	 	 
	SECTION 8.01. Supplemental Indentures Without Consent of Holders
	 	 	31	 
	SECTION 8.02. Supplemental Indentures with Consent of Holders
	 	 	32	 
	SECTION 8.03. Effect of Supplemental Indenture
	 	 	33	 
	SECTION 8.04. Documents to Be Given to Trustee
	 	 	34	 
	SECTION 8.05. Notation on Securities in Respect of Supplemental Indentures
	 	 	34	 
	 
	 	 	 	 
	ARTICLE 9 CONSOLIDATION, MERGER, SALE OR CONVEYANCE
	 	 	34	 
	 
	 	 	 	 
	SECTION 9.01. Company May Consolidate, Etc. on Certain Terms
	 	 	34	 
	SECTION 9.02. Successor Corporation Substituted
	 	 	34	 
	SECTION 9.03. Opinion of Counsel to Trustee
	 	 	35	 
	 
	 	 	 	 
	ARTICLE 10 SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED FUNDS
	 	 	35	 
	 
	 	 	 	 
	SECTION 10.01. Satisfaction and Discharge of Indenture; Defeasance
	 	 	35	 
	SECTION 10.02. Conditions to Defeasance
	 	 	36	 
	SECTION 10.03. Application of Trust Money
	 	 	37	 
	SECTION 10.04. Repayment to Company
	 	 	37	 
	SECTION 10.05. Indemnity for Government Obligations
	 	 	37	 
	SECTION 10.06. Reinstatement
	 	 	37	 






ii









 






	 	 	 	 	 
	 
	 	 	 	 
	ARTICLE 11 REDEMPTION OF SECURITIES AND SINKING FUNDS
	 	 	38	 
	 
	 	 	 	 
	SECTION 11.01. Applicability of Article
	 	 	38	 
	SECTION 11.02. Notice of Redemption; Partial Redemptions
	 	 	38	 
	SECTION 11.03. Payment of Securities Called for Redemption
	 	 	39	 
	SECTION 11.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption
	 	 	40	 
	SECTION 11.05. Repayment at the Option of the Holders
	 	 	40	 
	 
	 	 	 	 
	ARTICLE 12 CONVERSION OF SECURITIES
	 	 	40	 
	 
	 	 	 	 
	SECTION 12.01. Applicability of Article
	 	 	40	 
	SECTION 12.02. Right of Holders to Convert Securities into Common Shares
	 	 	40	 
	SECTION 12.03. Issuance of Common Shares on Conversions
	 	 	41	 
	SECTION 12.04. No Payment or Adjustment for Interest or Dividends
	 	 	42	 
	SECTION 12.05. Adjustment of Conversion Price
	 	 	42	 
	SECTION 12.06. No Fractional Shares to Be Issued
	 	 	45	 
	SECTION 12.07. Notice to Holders of the Securities of a Series Prior
to Taking Certain Types of Action
	 	 	46	 
	SECTION 12.08 Covenant to Reserve Shares for Issuance on Conversion of Securities
	 	 	46	 
	SECTION 12.09. Compliance with Governmental Requirements
	 	 	47	 
	SECTION 12.10. Payment of Taxes upon Certificates for Shares Issued upon Conversion
	 	 	47	 
	SECTION 12.11. Trustee’s Duties with Respect to Conversion Provisions
	 	 	47	 
	SECTION 12.12. Trustee Under No Duty to Monitor Stock Price or Calculations
	 	 	47	 
	SECTION 12.13. Conversion Arrangement on Call for Redemption
	 	 	47	 
	 
	 	 	 	 
	ARTICLE 13 MISCELLANEOUS PROVISIONS
	 	 	48	 
	 
	 	 	 	 
	SECTION 13.01. Incorporators, Shareholders, Officers and Directors of
Company Exempt from Individual Liability
	 	 	48	 
	SECTION 13.02. Provisions of Indenture for the Sole Benefit of Parties and Holders
	 	 	48	 
	SECTION 13.03. Successors and Assigns of Company Bound by Indenture
	 	 	49	 
	SECTION 13.04. Notices and Demands on Company, Trustee and Holders
	 	 	49	 
	SECTION 13.05. Electronic Transmission to the Trustee
	 	 	49	 
	SECTION 13.06. Officers’ Certificates and Opinions of Counsel;
Statements to Be Contained Therein
	 	 	50
	 
	SECTION 13.07. Payments Due on Saturdays, Sundays and Holidays
	 	 	51	 
	SECTION 13.08. Conflict of any Provision of Indenture with Trust Indenture Act
	 	 	51	 
	SECTION 13.09. New York Law to Govern
	 	 	51	 
	SECTION 13.10. Counterparts
	 	 	51	 
	SECTION 13.11. Effect of Headings; Gender
	 	 	51	 
	SECTION 13.12. Waiver of Jury Trial
	 	 	51	 
	SECTION 13.13. Force Majeure
	 	 	51	 






iii









 






INDENTURE




     This INDENTURE (this “Indenture”), dated as of                                          , 20___, is by and between COEUR
D’ALENE MINES CORPORATION, an Idaho corporation (the
“Company”), and [____],
a [____], as trustee (the “Trustee”).



RECITALS




     A. The Company has duly authorized the issue from time to time of its debentures, notes or
other evidences of indebtedness (the “Securities”) to be issued in one or more Series.



     B. All things necessary to make this Indenture a valid, legally binding indenture and
agreement according to its terms have been done.



     NOW, THEREFORE, in consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually agreed for the equal and ratable benefit of the Holders from time
to time of the Securities or of Series thereof as follows.



ARTICLE 1

DEFINITIONS




     SECTION 1.01. Certain Terms Defined. Unless otherwise specified as contemplated by Section
2.03 for the Securities of any Series, the following terms (except as otherwise expressly provided
or unless the context otherwise clearly requires) for all purposes of this Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in this Section 1.01.
All other terms (except as herein otherwise expressly provided or unless the context otherwise
clearly requires) used in this Indenture that are defined in the Trust Indenture Act or the
definitions of which in the Securities Act are referred to in the Trust Indenture Act, including
terms defined therein by reference to the Securities Act, shall have the meanings assigned to such
terms in the Trust Indenture Act and the Securities Act as in force at the date of this Indenture.
All accounting terms used herein and not expressly defined shall have the meanings assigned to such
terms in accordance with GAAP. The words “herein”, “hereof” and “hereunder” and other words of
similar import refer to this Indenture as a whole, as supplemented and amended from time to time,
and not to any particular Article, Section or other subdivision. The terms defined in this Article
1 have the meanings assigned to them in this Article 1 and include the plural as well as the
singular.



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



     “Business Day”, except as may otherwise be provided in the form of Securities of any
particular Series, with respect to any Place of Payment or place of publication means any day,
other than a Saturday, Sunday or day on which banking institutions are authorized or required by
law or regulation to close in that Place of Payment or place of publication.



     “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act, or if at any time after the execution and



 









 




delivery of this Indenture such Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties on such date.




     “Common Shares” means the shares of common stock, par value $0.01 per share, of the Company,
collectively as they exist on the date of this Indenture, or any other shares of the Company into
which such shares shall be reclassified or changed.



     “Company” means the Person identified as the “Company” in the first paragraph hereof until a
successor company shall have become such pursuant to the applicable provisions hereof, and
thereafter “Company” shall mean such successor company.



     “Corporate Trust Office” means the principal corporate trust office of the Trustee at which at
any particular time its corporate trust business shall be administered, which office at the date of
execution of this Indenture is located at [____________] or such other address as the Trustee
may designate from time to time by notice to the Holders and the Company.



     “covenant defeasance option” has the meaning specified in Section 10.01(b).



     “defaulted interest” has the meaning specified in Section 2.07.



     “Depository”, with respect to Securities of any Series for which the Company shall determine
that such Securities will be issued as a Depository Security, means The Depository Trust Company or
another clearing agency or any successor registered under the Securities Exchange Act or other
applicable statute or regulation, which, in each case, shall be designated by the Company pursuant
to Sections 2.03 and 2.13.



     “Depository Security”, with respect to any Series of Securities, means a Security executed by
the Company and authenticated and delivered by the Trustee to the Depository or pursuant to the
Depository’s instruction, all in accordance with this Indenture and pursuant to a resolution of the
Board of Directors or an indenture supplemental hereto as contemplated by Section 2.03, which shall
be registered as to principal and interest in the name of the Depository or its nominee and shall
represent, and shall be denominated in an amount equal to the aggregate principal amount of, all of
the Outstanding Securities of such Series.



     “Event of Default” has the meaning specified in Section 5.01.



     “Federal Income Tax” means United States federal income tax.



     “GAAP” means such accounting principles as are generally accepted at the time of any
computation hereunder.



     “Government Obligations”, unless otherwise specified pursuant to Section 2.03, means
securities that are (i) direct obligations of the United States government or (ii) obligations of a
Person controlled or supervised by, or acting as an agency or instrumentality of, the United States
government, the payment of which obligations is unconditionally guaranteed by such
government, and that, in either case, are full faith and credit obligations of such government
and are not callable or redeemable at the option of the issuer thereof.



2









 





     “Holder”, “Holder of Securities”, “Registered Holder”, or other similar terms mean the Person
in whose name at the time a particular Security is registered in the Security register.



     “Indenture” means this instrument as originally executed or as it may from time to time be
amended or supplemented as herein provided, as so amended or supplemented or both, and shall
include the forms and terms of particular Series of Securities established as contemplated by
Section 2.03.



     “Internal Revenue Service” means the United States Internal Revenue Service or a successor
entity thereto.



     “legal defeasance option” has the meaning specified in Section 10.01(b).



     “Nasdaq Market” has the meaning specified in Section 12.05(e).



     “Officers’ Certificate” means a certificate signed on behalf of the Company by any two
authorized executive officers of the Company and delivered to the Trustee. Each such certificate
shall include the statements provided for in Section 13.06.



     “Opinion of Counsel” means a written opinion of legal counsel who may be an employee of or
counsel to the Company. Each Opinion of Counsel shall include the statements provided for in
Section 13.06, if and to the extent required hereby.



     “original issue date” of any Security means the date set forth as such on such Security.



     “Original Issue Discount Security” means any Security that provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Section 5.01.



     “Outstanding”, when used with reference to Securities of any Series as of any particular time,
subject to the provisions of Section 7.04, means all Securities of that Series authenticated and
delivered under this Indenture, except:




     (a)
Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;



     (b) Securities, or portions thereof, for the payment or redemption of which the
necessary funds in the required currency shall have been deposited in trust with the Trustee
or with any Paying Agent other than the Company, or shall have been set aside, segregated
and held in trust by the Company for the holders of such Securities if the Company shall act
as its own Paying Agent, provided that if such securities, or portions thereof, are to be
redeemed prior to the maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Trustee shall have been made for giving
such notice;



     (c) Securities in substitution for which other Securities shall have been authenticated
and delivered pursuant to the terms of Section 2.10, except with respect to any such
Security as to which proof satisfactory to the Trustee and the Company is



3









 





     
presented that
such Security is held by a person in whose hands such Security is a legal, valid and binding
obligation of the Company;



     
(d) Securities converted into other securities of the Company in accordance with or as
contemplated by this Indenture; and



     
(e) Securities with respect to which the Company has effected defeasance as provided in
Article 10.




     “Paying Agent” means any Person, which may include the Company, authorized by the Company to
pay the principal of or interest, if any, on any Security of any Series on behalf of the Company.



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



     “Place of Payment”, when used with respect to the Securities of any Series, means the place or
places where the principal of and interest on the Securities of that Series are payable as
specified pursuant to Section 3.02.



     “Preferred Shares” means any shares issued by the Company that are entitled to a preference or
priority over the Common Shares upon any distribution of the Company’s assets, whether by dividend
or upon liquidation.



     “principal” whenever used with reference to the Securities or any Security or any portion
thereof shall be deemed to include “and premium, if any.”



     “record date” has the meaning specified in Section 2.07.



     “Responsible Officer”, when used with respect to the Trustee, means any officer within the
corporate trust department of the Trustee, including any vice president, assistant vice president,
assistant secretary, senior trust officer, trust officer or any other officer or assistant officer
of the Trustee customarily performing functions similar to those performed by the individuals who
at the time shall be such officers, respectively, or to whom any corporate trust matter is referred
at the Corporate Trust Office because of his or her knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the administration of this
Indenture.



     “Securities Act” means the Securities Act of 1933, as amended, as in force at the date as of
which this Indenture was originally executed.



     “Securities Exchange Act” means the Securities Exchange Act of 1934, as amended, as in force
at the date as of which this Indenture was originally executed.



     “Security” or “Securities” has the meaning stated in the first recital of this Indenture and
more particularly means any securities authenticated and delivered under this Indenture.



4









 





     “Security register” has the meaning specified in Section 2.08.



     “Series” or “Series of Securities” means all Securities of a similar tenor authorized by a
particular resolution of the Board of Directors or in one or more indentures supplemental hereto.



     “Subsidiary” means: (i) a corporation in which the Company and/or one or more Subsidiaries of
the Company directly or indirectly owns, at the date of determination, a majority of the capital
stock with voting power under ordinary circumstances to elect directors; (ii) a partnership,
limited liability company, joint venture or similar entity in which the Company and/or one or more
Subsidiaries of the Company directly or indirectly holds, at the date of determination, a majority
interest in the equity capital or profits or other similar interests of such entity; or (iii) any
other unincorporated Person in which the Company and/or one or more Subsidiaries of the Company
directly or indirectly owns at the date of determination (x) at least a majority ownership interest
or (y) the power to elect or direct the election of a majority of the directors or other governing
body of such Person.



     “Trading Day” has the meaning specified in Section 12.05(e).



     “Trust Indenture Act”, except as otherwise provided in Sections 8.01 and 8.02, means the Trust
Indenture Act of 1939, as amended, as in force at the date as of which this Indenture was
originally executed.



     “Trustee” means the Person identified as the “Trustee” in the first paragraph hereof until a
successor Trustee shall have become such pursuant to the applicable provisions hereof, and
thereafter “Trustee” shall mean each Person who is then a Trustee hereunder. If at any time there
is more than one such Person, “Trustee” as used with respect to the Securities of any Series means
the Trustee with respect to Securities of that Series.



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



ARTICLE 2

SECURITIES




     SECTION 2.01. Forms Generally. The Securities of each Series shall be substantially in such
form, including temporary or definitive global form, as shall be established by or pursuant to a
resolution of the Board of Directors or in one or more indentures supplemental hereto, in each case
with such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have imprinted or otherwise reproduced thereon such legend or
legends, not inconsistent with the provisions of this Indenture, as may be required to comply with
any law or with any rules or regulations, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the officers executing such Securities as
evidenced by their execution of the Securities.



     The definitive Securities may be printed or reproduced in any other manner, all as determined
by the officers executing such Securities as evidenced by their execution of such Securities.



5









 





     SECTION 2.02. Form of Trustee’s Certificate of Authentication. The Trustee’s certificate of
authentication on all Securities shall be in substantially the following form:



     This is one of the Securities of the Series designated herein and referred to in the
within-mentioned Indenture.



Dated:                     




	 	 	 	 	 
	 	                                                            , as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 	— or —



                                                            , as Trustee

 	 
	 	By:  	                                                                            
    , as
 	 
	 	Authentication Agent

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 




     SECTION 2.03. Amount Unlimited; Issuable in Series. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is unlimited.



     The Securities may be issued in one or more Series. There shall be established in or pursuant
to a resolution of the Board of Directors and set forth in an Officers’ Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of Securities of any Series:




     (a) the title of the Securities of the Series (including CUSIP numbers), which shall
distinguish the Securities of the Series from all other Securities issued by the Company;




     (b) any limit upon the aggregate principal amount of the Securities of the Series that
may be authenticated and delivered under this Indenture, except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for or in lieu of, other
Securities of the Series pursuant to Section 2.08, 2.10, 2.12, 8.05 or 11.03;



6









 






     (c) the price at which the Securities of the Series will be issued;




     (d) the date or dates on which the principal of the Securities of the Series is payable
or the method of determination thereof;




     (e) the rate or rates, which may be fixed or variable, or the method or methods of
determination thereof, at which the Securities of the Series shall bear interest (including
any interest rates applicable to overdue payments), if any, the date or dates from which
such interest shall accrue, the interest payment dates on which such interest shall be
payable, the record dates for the determination of Holders to whom interest is payable and
the dates on which any other amounts, if any, will be payable;




     (f) the place or places where the principal of, premium and other amounts, if any, and
interest, if any, on Securities of the Series shall be payable if other than as provided in
Section 3.02;




     (g) the price or prices at which, the period or periods within which and the terms and
conditions upon which Securities of the Series may be redeemed, in whole or in part, at the
option of the Company;




     (h) if other than the principal amount thereof, the portion of the principal amount of
the Securities of the Series payable upon declaration of acceleration of maturity thereof;




     (i) the obligation, if any, of the Company to redeem, purchase or repay Securities of
the Series whether pursuant to any sinking fund or analogous provisions or pursuant to other
provisions set forth therein or at the option of a Holder thereof and the price or prices at
which and the period or periods within which and the terms and conditions upon which
Securities of the Series shall be redeemed, purchased or repaid, in whole or in part;




     (j) the denominations in which Securities of the Series shall be issuable;




     (k) the form of the Securities, including such legends as required by law or as the
Company deems necessary or appropriate and the form of any temporary global security that
may be issued;




     (l) whether, and under what circumstances, the Securities of any Series shall be
convertible into other securities of the Company and, if so, the terms and conditions upon
which such conversion will be effected, including the initial conversion price or rate, the
conversion period and other provisions in addition to or in lieu of those described herein;




     (m) whether there are any authentication agents, Paying Agents, transfer agents or
registrars with respect to the Securities of such Series;




     (n) whether the Securities of such Series are to be issuable in whole or in part by one
or more global notes registered in the name of a Depository or its nominee;



7









 






     (o) the ranking of the Securities of such Series as senior debt securities or
subordinated debt securities;




     (p) if other than U.S. dollars, the currency, currencies or currency units issued by
the government of one or more countries other than the United States or by any recognized
confederation or association of such governments or a composite currency the value of which
is determined by reference to the values of the currencies of any group of countries in
which the Securities of any Series may be purchased and in which payments on the Securities
of such Series will be made (which currencies may be different for payments of principal and
interest, if any);




     (q) if the Securities of any Series will be secured by any collateral, a description of
the collateral and the terms and conditions of the security and realization provisions;




     (r) the provisions relating to any guarantee of the Securities of any Series, including
the ranking thereof;




     (s) the ability, if any, to defer payments of principal, interest, or other amounts;
and




     (t) any other specific terms or conditions of the Securities of any Series, including
any additional Events of Default or covenants provided for with respect to the Securities of
such Series, and any terms that may be required by or advisable under applicable laws or
regulations.



     All Securities of any one Series shall be substantially identical except as to denomination
and except as otherwise may be provided in or pursuant to such resolution of the Board of Directors
or in any such indenture supplemental hereto. The Securities of any 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.



     SECTION 2.04. Authentication and Delivery of Securities. At any time and from time to time
after the execution and delivery of this Indenture, the Company may deliver Securities of any
Series executed by the Company to the Trustee for authentication, and the Trustee shall thereupon
authenticate and make available for delivery such Securities to or upon the written order of the
Company, signed by both (y) the chairman of its Board of Directors, or its president or any vice
president, and (z) its treasurer or any assistant treasurer or its secretary or any assistant
secretary. At the time of the authentication of a Series of Securities, or the first
authentication of a Series of Securities that provides for the issuance of Securities of that
Series from time to time, and accepting the additional responsibilities under this Indenture in
relation to
any such Series of Securities, the Trustee shall be provided with and subject to Section 6.01
shall be fully protected in relying upon:




     (a) a copy of any resolution or resolutions of the Board of Directors relating to such
Series, in each case certified by the secretary or an assistant secretary of the Company;



8









 






     (b) a supplemental indenture, if any;




     (c) an Officers’ Certificate setting forth the form and terms of the Securities of such
Series as required pursuant to Sections 2.01 and 2.03, respectively, and prepared in
accordance with Section 13.06; and




     (d) an Opinion of Counsel, prepared in accordance with Section 13.06, which shall
state:




     (i) that the form or forms and terms of such Series of Securities have been
established by or pursuant to a resolution of the Board of Directors or by a
supplemental indenture as permitted by Sections 2.01 and 2.03 in conformity with the
provisions of this Indenture;




     (ii) that such Series of Securities have been duly authorized and, 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, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other laws relating to or affecting the enforcement of creditors’
rights generally and by general equitable principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law; and




     (iii) that all conditions precedent to the execution and delivery by the
Company of such Series of Securities have been complied with.



     The Trustee shall have the right to decline to authenticate and deliver any Series of
Securities under this Section 2.04 if the issue of such Series of Securities pursuant to this
Indenture will affect the Trustee’s own rights, duties or immunities under this Indenture in a
manner not reasonably acceptable to the Trustee.



     SECTION 2.05. Execution of Securities. The Securities shall be signed on behalf of the
Company by both (a) the chairman of its Board of Directors or its president or any vice president
and (b) its treasurer or any assistant treasurer or its secretary or any assistant secretary. Such
signatures may be the manual or facsimile signatures of such officers. The seal of the Company may
be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects in any such
reproduction of the seal or any such signature shall not affect the validity or enforceability of
any Security that has been duly authenticated and delivered by the Trustee.



     In case any officer of the Company who shall have signed any of the Securities shall cease to
be such officer before the Security so signed shall be authenticated and delivered by the Trustee
or disposed of by the Company, such Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Security had not ceased to be such officer of the
Company. Any Security may be signed on behalf of the Company by such individuals as, at the actual
date of the execution of such Security, shall be the proper officers of



9









 




the Company, although at
the date of the execution and delivery of this Indenture any such individual was not such an
officer.




     SECTION 2.06. Certificate of Authentication. Only such Securities as shall bear thereon a
certificate of authentication substantially in the form set forth in Section 2.02 and executed by
the Trustee by the manual signature of one of its authorized signatories shall be valid or
obligatory for any purpose. Such certificate by the Trustee upon any Security executed by the
Company shall be conclusive evidence that the Security so authenticated has been duly authenticated
and delivered hereunder.



     SECTION 2.07. Denomination and Date of Securities; Payments of Interest. The Securities
shall be issuable in denominations as shall be specified as contemplated by Section 2.03. In the
absence of any such specification with respect to the Securities of any Series, Securities shall be
issuable in denominations of $1,000 and any integral multiple thereof, and interest shall be
computed on the basis of a 360-day year of twelve 30-day months. The Securities shall be numbered,
lettered or otherwise distinguished in such manner or in accordance with such plan as the officers
of the Company executing the same may determine with the approval of the Trustee as evidenced by
its execution and authentication thereof.



     Each Security shall be dated the date of its authentication.



     Unless otherwise provided as contemplated by Section 2.03, interest on any Security that is
payable, and is punctually paid or duly provided for, on any interest payment date shall be paid to
the person in whose name that Security (or one or more predecessor securities) is registered at the
close of business on the regular record date for the payment of such interest.



     The term “record date” as used with respect to any interest payment date (except for a date
for payment of defaulted interest) means the date specified as such in the terms of the Securities
of any particular Series or, if no such date is so specified, the close of business on the
fifteenth day preceding such interest payment date, whether or not such record date is a Business
Day.



     Any interest on any Security of any Series that is payable but not punctually paid or duly
provided for (“defaulted interest”) on any interest payment date shall forthwith cease to be
payable to the Registered Holder on the relevant record date by virtue of such Holder having been a
Holder on such record date. Such defaulted interest may be paid by the Company, at its election in
each case, as provided in clause (a) or clause (b) below:




     (a) The Company may elect to make payment of any defaulted interest to the persons in
whose names any such Securities (or their respective predecessor Securities) are registered
at the close of business on a special record date for the payment of such defaulted
interest, which shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on each Security
of such Series and the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee funds equal to the aggregate amount proposed to be paid in respect
of such defaulted interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment.



10









 






Such funds when deposited shall be held
in trust for the benefit of the Persons entitled to such defaulted interest as provided in
this clause (a). Thereupon the Trustee shall fix a special record date for the payment of
such defaulted interest in respect of Securities of such Series, which shall be not more
than 15 nor less than ten days prior to the date of the proposed payment and not less than
ten days after the receipt by the Trustee of the notice of the proposed payment. The
Trustee promptly shall notify the Company of such special record date and, in the name and
at the expense of the Company, shall cause notice of the proposed payment of such defaulted
interest and the special record date thereof to be mailed, first class postage prepaid, to
each Registered Holder at his address as it appears in the Security register, not less than
ten days prior to such special record date. Notice of the proposed payment of such
defaulted interest and the special record date therefor having been mailed as aforesaid,
such defaulted interest in respect of Securities of such Series shall be paid to the persons
in whose names such Securities (or their respective predecessor Securities) are registered
on such special record date and such defaulted interest shall no longer be payable pursuant
to the following clause (b).




     (b) The Company may make payment of any defaulted interest on the Securities of any
Series in any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of that Series may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such payment shall be deemed practicable by the
Trustee.



     Subject to the foregoing provisions of this Section 2.07, 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, that were carried by such
other Security.



     SECTION 2.08. Registration, Registration of Transfer and Exchange. The Company will cause to
be kept at each office or agency to be maintained for the purpose as provided in Section 3.02 a
register or registers (the “Security register”) in which, subject to such reasonable regulations as
it may prescribe, the Company will provide for the registration and the registration of transfer of
the Securities. The Trustee is hereby appointed Security registrar for purposes of registering,
and registering transfers of, the Securities.



     Upon surrender for registration of transfer of any Security of any Series at any such office
or agency to be maintained for the purpose as provided in Section 3.02, the Company shall
execute, and the Trustee shall authenticate and make available for delivery in the name of the
transferee or transferees, a new Security or Securities of the same Series and of like tenor and
containing the same terms (other than the principal amount thereof, if more than one Security is
executed, authenticated and delivered with respect to any security so presented, in which case the
aggregate principal amount of the executed, authenticated and delivered Securities shall equal the
principal amount of the Security presented in respect thereof) and conditions.



     All Securities issued upon any registration of transfer or exchange of Securities shall be the
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.



11









 





     Every Security presented or surrendered for registration of transfer or exchange, if so
required by the Company or the Trustee, shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Trustee, duly executed by the
Holder thereof or his attorney and duly authorized in writing.



     No service charge shall be made for any registration of transfer or exchange of Securities,
but the Company may require payment of an amount sufficient to cover any tax 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 2.12, 8.05 or 11.03 not involving any
transfer.



     The Company shall not be required (i) to issue, register the transfer of or exchange any
Security during the 15-day period prior to the day of mailing of the relevant notice of redemption
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 Security to be redeemed in part, the portion thereof not
redeemed.



     SECTION 2.09. Trustee’s Duties to Monitor Compliance. 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.



     SECTION 2.10. Mutilated, Defaced, Destroyed, Lost and Stolen Securities. Unless otherwise
specified as contemplated by Section 2.03 of any Series, in case any temporary or definitive
Security shall become mutilated or defaced or be destroyed, lost or stolen, the Company shall
execute, and upon the written request of any officer of the Company, the Trustee shall authenticate
and make available for delivery a new Security of the same Series and of like tenor and principal
amount and with the same terms and conditions, bearing a number not contemporaneously outstanding,
in exchange and substitution for the mutilated or defaced Security or in lieu of and substitution
for the Security so destroyed, lost or stolen. In every case
the applicant for a substitute Security shall furnish to the Company and to the Trustee such
security or indemnity as may be required by them to indemnify and defend and to save each of them
harmless and, in every case of destruction, loss or theft, evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof.



     Upon the issuance of any substitute Security, the Company may require the payment of an amount
sufficient to cover any tax or other governmental charge that may be imposed in relation thereto
and any other expenses, including the reasonable fees and expenses of the Trustee, connected
therewith. In case any Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or stolen, the Company,
instead of issuing a substitute Security, may pay or authorize the payment of the same without
surrender thereof except in the case of a mutilated or defaced Security. The applicant for such
payment shall furnish to the Company and to the Trustee such security or



12









 




indemnity as any of them
may require to save each of them harmless. In every case of destruction, loss or theft, the
applicant also shall furnish to the Company and the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof.




     Every substitute Security issued pursuant to the provisions of this Section 2.10 by virtue of
the fact that any Security is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any
time enforceable by anyone and shall be entitled to all the benefits of and shall be subject to all
the limitations of rights set forth in this Indenture equally and proportionately with any and all
other Securities duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced, destroyed, lost or
stolen Securities and shall preclude any and all other rights or remedies, notwithstanding any law
or statute to the contrary with respect to the replacement or payment of negotiable instruments or
other securities without their surrender.



     SECTION 2.11. Cancellation of Securities. All Securities surrendered for payment,
redemption, registration of transfer or exchange, or for credit against any payment in respect of a
sinking or analogous fund, if surrendered to the Company or any agent of the Company or the Trustee
shall be delivered to the Trustee for cancellation or, if surrendered to the Trustee, shall be
cancelled by it in accordance with its customary procedures; and no Securities shall be issued in
lieu thereof except as expressly permitted by the provisions of this Indenture. The Company at any
time may deliver to the Trustee for cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold and all Securities so delivered shall be promptly
cancelled by the Trustee. The Trustee shall return cancelled Securities held by it to the Company,
upon written request. If the Company shall acquire any of the Securities, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by such Securities
unless the same are delivered to the Trustee for cancellation.



     SECTION 2.12. Temporary Securities. Pending the preparation of definitive Securities for any
Series, the Company may execute and the Trustee shall authenticate and make available for delivery
temporary Securities for such Series, which may be printed, typewritten or otherwise
reproduced, in each case in form reasonably acceptable to the Trustee. Temporary Securities of any
Series may be issued in any authorized denomination and substantially in the form of the definitive
Securities of such Series but with such omissions, insertions and variations as may be appropriate
for temporary Securities, all as may be determined by the Company with the reasonable concurrence
of the Trustee. Temporary Securities may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Security shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Securities. Without unreasonable delay the Company shall
execute and shall furnish definitive securities of such Series and thereupon temporary Securities
of such Series may be surrendered in exchange therefor without charge at each office or agency to
be maintained by the Company for that purpose pursuant to Section 3.02, and the Trustee shall
authenticate and make available for delivery in exchange for such temporary Securities of such
Series a like aggregate principal amount of definitive Securities of the same Series of authorized
denominations. Until so



13









 




exchanged, the temporary Securities of any Series shall be entitled to the
same benefits under this Indenture as definitive Securities of such Series.




     SECTION 2.13. Securities in Global Form. If Securities of a Series are issuable in global
form, as specified as contemplated by Section 2.03, such global form of Security shall represent
such of the Outstanding Securities of such Series as shall be specified therein and may provide
that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed
thereon and that the aggregate amount of Outstanding Securities represented thereby may from time
to time be reduced to reflect exchanges. Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount, of Outstanding Securities represented
thereby may be made by the Trustee in such manner and upon instructions given by such Person or
Persons as shall be specified therein or in the Company order to be delivered to the Trustee
pursuant to Section 2.04. Subject to the provisions of Section 2.04, the Trustee shall deliver and
redeliver any Security in definitive global form in the manner and upon written instructions given
by the Person or Persons specified therein or in the applicable Company order. If a Company order
pursuant to Section 2.04 has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Security in global form shall be in
writing.



     Unless otherwise specified as contemplated by Section 2.03, payment of principal of and any
interest on any Security in definitive global form shall be made to the Person or Persons specified
therein.



     Prior to due presentment of a Security for registration of transfer, the Company, the Trustee,
and any agent of the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of principal of or
interest on such Security and for all other purposes whatsoever, whether or not such Security shall
be overdue, and neither the Company, the Trustees nor any agent of the Company or the Trustee will
be affected by notice to the contrary.



     If The Depository Trust Company is at any time unwilling or unable to continue as Depository
or if at any time The Depository Trust Company ceases to be a clearing agency registered under the
Securities Exchange Act if so required by applicable law or regulation, and, in either case, a
successor Depository is not appointed within 90 days, certificated Securities will be issued in
exchange for the global Securities. In addition, the Company may determine, at any time and
subject to the procedures of The Depository Trust Company, not to have any Securities represented
by one or more global Securities, and, in such event, shall issue individual Securities in
certificated form in exchange for the relevant global Securities. Beneficial interests in global
Securities will be exchangeable for individual Securities in certificated form in the event of a
default or an Event of Default, upon prior written notice to the Trustee by or on behalf of The
Depository Trust Company or at the written request of the owner of such beneficial interests, in
each case, in accordance with the terms hereof. In any of the foregoing circumstances, an owner of
a beneficial interest in a global Security shall be entitled to physical delivery of individual
Securities in certificated form of like tenor and rank, equal in principal amount to such
beneficial interest, and to have such Securities in certificated form registered in its name.




14











 





     SECTION 2.14. CUSIP Numbers. The Company in issuing the Securities may use CUSIP numbers if
then generally in use and, if so, the Trustee shall use CUSIP numbers in notices of redemption as a
convenience to Holders. Any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification numbers printed on the
Securities. No such redemption shall be affected by any defect in or omission of such numbers.
The Company promptly will notify the Trustee of any change in the CUSIP numbers.



ARTICLE 3

COVENANTS OF THE COMPANY




     SECTION 3.01. Payment of Principal and Interest. The Company covenants and agrees for the
benefit of each particular Series of Securities that it will duly and punctually pay or cause to be
paid the principal of, and interest on, each of the Securities of such Series in accordance with
the terms of the Securities of such Series and this Indenture.



     SECTION 3.02. Offices for Payment, Etc. So long as any of the Securities remain outstanding,
the Company will maintain for each Series an office or agency where the Securities may be presented
for payment or conversion, where the Securities may be presented for registration of transfer and
for exchange and where notices and demands to or upon the Company in respect of the Securities or
of this Indenture may be served. The Company will give to the Trustee written notice of the
location of any such office or agency and of any change of location thereof. In case the Company
shall fail to so designate or maintain any such office or agency or shall fail to give such notice
of the location or of any change in the location thereof, presentations and demands may be made and
notices may be served at the Corporate Trust Office. Unless otherwise specified pursuant to
Section 2.03, the Trustee is hereby appointed Paying Agent.



     SECTION 3.03. Paying Agents. Whenever the Company shall appoint a Paying Agent other than
the Trustee with respect to the Securities of any Series, it will cause such Paying Agent to
execute and deliver to the Trustee an instrument in which such Agent shall agree with the Trustee,
subject to the provisions of this Section 3.03:




     (a) that it will hold all amounts received by it as such Paying Agent for the payment
of the principal of or interest on the Securities of such Series in trust for the benefit of
the Holders of the Securities of such Series and, upon the occurrence of an Event of Default
and upon the written request of the Trustee, pay over all such amounts received by it to the
Trustee; and




     (b) that it will give the Trustee notice of any failure by the Company or by any other
obligor on the Securities of such Series to make any payment of the principal of or interest
on the Securities of such Series when the same shall be due and payable.



     One Business Day prior to each due date of the principal of or interest on the Securities of
such Series, the Company will deposit with the Paying Agent sufficient funds to pay such



15









 







principal
or interest so becoming due and, unless such Paying Agent is the Trustee, notify the Trustee of any
failure to take such action.



     If the Company shall act as its own Paying Agent with respect to the Securities of any Series,
on or before each due date of the principal of or interest on the Securities of such Series it will
set aside, segregate and hold in trust for the benefit of the Holders of the Securities of such
Series sufficient funds to pay such principal or interest so becoming due. The Company will
promptly notify the Trustee of any failure to take such action.



     At any time, for the purpose of obtaining a satisfaction and discharge with respect to one or
more or all Series of Securities or for any other reason, the Company may pay or cause to be paid
to the Trustee all amounts held in trust for any such Series by the Company or any Paying Agent,
such amounts to be held by the Trustee in trust pursuant to this Indenture.



     The agreement to hold amounts in trust as provided in this Section 3.03 is subject to the
provisions of Sections 10.03 and 10.04.



     SECTION 3.04. Officers’ Certificate. The Company shall deliver to the Trustee, within 120
days after the end of each fiscal year, an Officers’ Certificate indicating whether the officers
signing such Officers’ Certificate on behalf of the Company know of any default with respect to the
Company’s compliance with all conditions or covenants under the Securities of any Series. The
Company also shall deliver to the Trustee, within 30 days after the occurrence thereof, written
notice of any Event of Default with respect to the Securities of any Series, the status thereof and
what action the Company is taking or proposes to take in respect thereof.



     SECTION 3.05. Calculation of Original Issue Discount. The Company shall file with the
Trustee, within 30 days after the end of each calendar year, a written notice specifying the amount
of original issue discount, if any, including daily rates and accrual periods, accrued on each
Series of Outstanding Original Issue Discount Securities as of the end of such year.



ARTICLE 4

HOLDERS’ LISTS AND REPORTS BY THE COMPANY




     SECTION 4.01. Company to Furnish Trustee Information as to Names and Addresses of Holders.
Unless otherwise contemplated by Section 2.03 for the Securities of any Series, the Company will
furnish or cause to be furnished to the Trustee a list in such form as the Trustee reasonably may
require of the names and addresses of the Holders of the Securities of each Series:




     (a) semiannually, and not more than 15 days after each record date for the payment of
interest on such Securities, as of such record date; and




     (b) at such other times as the Trustee reasonably may request in writing, within 30
days after receipt by the Company of any such request, such list to be as of a date not more
than 15 days prior to the time such information is furnished;




     provided that, if the Trustee shall be the Security registrar for such Series, such
list shall not be required to be furnished.



16









 





     SECTION 4.02. Preservation and Disclosure of Holders’ Lists.




     (a) The Trustee will preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders contained in the most recent list furnished to the Trustee as
provided in Section 4.01 and the names and addresses of Holders received by the Trustee in
its capacity as Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 4.01 upon receipt of a new list so furnished.




     (b) The rights of the Holders to communicate with other Holders with respect to their
rights under this Indenture or under the Securities, and the corresponding rights and
privileges of the Trustee, will be as provided by Section 312(b) of the Trust Indenture Act.




     (c) Every Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any agent of either of
them will be held accountable by reason of any disclosure of information as to names and
addresses of Holders made in accordance with the Trust Indenture Act.



     SECTION 4.03. Reports by the Company. So long as any Securities are outstanding, the Company
will file with the Trustee, within 15 days after it files them with the Commission, copies of its
annual report and the information, documents and other reports (or copies of such portions of any
of the foregoing as the Commission may from time to time by rules and regulations prescribe) which
the Company is required to file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities 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). The Company shall also comply with the other
provisions of Section 314(a) of the Trust Indenture Act.



     Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder.



ARTICLE 5

REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT




     SECTION 5.01. Event of Default Defined; Acceleration of Maturity; Waiver of Default. “Event
of Default”, with respect to Securities of any Series, means, unless otherwise specified as
contemplated by Section 2.03 for the Securities of any Series, any one of the following events
which shall have occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of



17









 







law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any administrative or
governmental body) unless it is either inapplicable to a particular Series or it is specifically
deleted or modified in or pursuant to the supplemental indenture or resolution of the Board of
Directors establishing such Series of Securities or in the form of Security for such Series:




     (a) default in the payment of any installment of interest upon any of the Securities of
such Series as and when the same shall become due and payable, and continuance of such
default for a period of 30 days;




     (b) default in the payment of all or any part of the principal of any of the Securities
of such Series as and when the same shall become due and payable, either at maturity, upon
any redemption or repurchase, by declaration or otherwise;




     (c) default in the performance or breach of any covenant or warranty contained in the
Securities of such Series or in this Indenture (other than (x) the failure to comply with
any covenant or agreement contained in Section 314(a)(1) of the Trust Indenture Act or
Section 4.03 or (y) a default in the performance or breach of a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section 5.01 specifically
dealt with or which has expressly been included in this Indenture solely for the benefit of
one or more Series of Securities other than that Series), and continuance of such default or
breach for a period of 90 days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that Series, a written notice
specifying such default or breach and requiring it to be remedied and stating that such
notice is a “Notice of Default” hereunder;




     (d) the Company (i) pursuant to or within the meaning of any bankruptcy law commences a
voluntary case, consents to the entry of an order for relief against it in an involuntary
case, consents to the appointment of a custodian of it or for any substantial part of its
property, or makes a general assignment for the benefit of its creditors or takes any
comparable action under any foreign laws relating to insolvency; or (ii) a court of
competent jurisdiction enters an order or decree under any bankruptcy law that is for relief
against the Company in an involuntary case, appoints a custodian of the Company or for any
substantial part of its property, or orders the winding up or liquidation of the
Company or any similar relief is granted under any foreign laws and the order or decree
remains unstayed and in effect for 90 days; or;




     (e) any other Event of Default (including Events of Default replacing or supplementing
the foregoing) provided with respect to Securities of such Series in the supplemental
indenture or resolution of the Board of Directors establishing such Series.



     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
4.03 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



18









 







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 4.03 and
continuance of such failure or breach for a period of 90 days after the date on which there has
been given, by registered or certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of all
Series affected thereby, 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.



     If an Event of Default occurs under clause (d) above, the principal of and interest on the
Securities of each Outstanding Series shall become immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders of any Securities.



     Unless otherwise specified as contemplated by Section 2.03 for the Securities of any Series,
if an Event of Default (other than an Event of Default occurring as a result of clause (d)) with
respect to the Securities of any Series shall have occurred and be continuing, either the Trustee
or the Holders of not less than 25% in aggregate principal amount of the Securities of such Series
then Outstanding by notice to the Company may declare the principal amount of all the Securities of
such Series and accrued and unpaid interest thereon to be due and payable immediately, and upon any
such declaration the same shall become and shall be immediately due and payable. This provision,
however, is subject to the condition that if at any time after the
principal of the Securities of such Series shall have been so declared due and payable, and
before any judgment or decree for the payment of the amounts due shall have been obtained or
entered as hereinafter provided, the Company shall have paid or deposited with the Trustee
sufficient funds to pay all matured installments of interest, if any, upon all the Securities of
such Series and the principal of the Securities of such Series that shall have become due other
than by such acceleration (with interest upon such principal and, to the extent that payment of
such interest is enforceable under applicable law, upon overdue installments of interest, at the
rate borne by the Securities of such Series to the date of such payment or deposit) and all other
defaults under this Indenture, other than the nonpayment of the principal of Securities of such
Series that shall have become due by such acceleration, shall have been remedied, then and in every
such case the Holders of a majority in aggregate principal amount at maturity of the Securities of
such Series then Outstanding, by written notice to the Company and to the Trustee for the
Securities of such



19









 







Series, may waive all defaults and rescind and annul such declaration and its
consequences; but no such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.



     Subject to the provisions of Article 6, in case an Event of Default with respect to the
Securities of any Series shall occur and be continuing, the Trustee shall not be under any
obligation to exercise any of the trusts or powers vested in it hereby at the request or direction
of any Holder of such Series, unless such Holder shall have offered to such Trustee security or
indemnity reasonably satisfactory to it.



     Additional terms and conditions with respect to the rights of Holders of the Securities of a
particular Series (including as to rights to rescind an acceleration of the payment of principal
and interest) and the rights and obligations of the Trustee, in each case, in connection with a
default or Event of Default, may be specified as contemplated by Section 2.03 for the Securities of
any Series.



     SECTION 5.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt. If the Company
shall fail to pay any installment of interest on any of the Securities of any Series when such
interest shall have become due and payable, and such default shall have continued for a period of
30 days, or shall fail to pay the principal of any of the Securities of any Series when the same
shall have become due and payable, whether upon maturity of the Securities of such Series or upon
any redemption or by declaration or otherwise, then upon demand of the Trustee for the Securities
of such Series the Company will pay to the Trustee for the Securities of such Series for the
benefit of the Holders of the Securities of such Series the whole amount that then shall have
become due and payable on all Securities of such Series for principal of or interest, as the case
may be (with interest to the date of such payment upon the overdue principal and, to the extent
that payment of such interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest specified in the Securities of such Series) and
such further amount as shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to and expenses incurred by the Trustee and its respective agents,
attorneys and counsel.



     Until such demand is made by the Trustee, the Company may pay the principal of and interest on
the Securities of any Series to the persons entitled thereto, whether or not the principal of and
interest on the Securities of such Series are overdue.



     If the Company shall fail to pay such amounts upon such demand, the Trustee for the Securities
of such Series, in its own name and as trustee of an express trust, shall be entitled and empowered
to institute any action or proceedings at law or in equity for the collection of the amounts so due
and unpaid. In any such case, the Trustee may prosecute any such action or proceedings to judgment
or final decree and may enforce any such judgment or final decree against the Company and collect
in the manner provided by law out of the property of the Company, wherever situated, the amounts
adjudged or decreed to be payable.



     If (i) there shall be pending proceedings relative to the Company under Title 11 of the United
States Code or any other applicable federal or state bankruptcy, insolvency or other



20









 







similar law, (ii) a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or
similar official shall have been appointed for or taken possession of the Company or its property
or (iii) any other comparable judicial proceedings relative to the Company under the Securities of
any Series, or to the creditors or property of the Company, shall be pending, and irrespective of
whether the principal of any Securities shall then be due and payable or whether the Trustee shall
have made any demand pursuant to the provisions of this Section 5.02, the Trustee shall be entitled
and empowered, by intervention in such proceedings or otherwise:




     (a) to file and prove a claim or claims for the whole amount of principal and interest
owing and unpaid in respect of the Securities of any Series and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to, and expenses incurred by, the Trustee,
and its agents, attorneys and counsel) and of the Holders allowed in any judicial
proceedings relative to the Company, or to the creditors or property of the Company; and




     (b) to collect and receive any funds or other property payable or deliverable on any
such claims, and to distribute all amounts received with respect to the claims of the
Holders and of the Trustee on their behalf; and any trustee, receiver, or liquidator,
custodian or other similar official is hereby authorized by each of the Holders to make
payments to the Trustee for the Securities of such Series, and, in the event that such
Trustee shall consent to the making of payments directly to the Holders, to pay to such
Trustee such amounts as shall be sufficient to cover reasonable compensation to and expenses
incurred by such Trustee and its respective agents, attorneys and counsel and all other
amounts due to such Trustee pursuant to Section 6.07.



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



     All rights of action and of asserting claims under this Indenture or under any of the
Securities may be enforced by the Trustee for the Securities of such Series without the possession
of any of the Securities of such Series or the production thereof at any trial or other proceedings
relative thereto. Any such action or proceedings instituted by the Trustee shall be brought in its
own name as trustee of an express trust. Any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor Trustee and their
respective agents and attorneys, shall be for the ratable benefit of the Holders of the Securities
in respect of which such action was taken.



     In any proceedings brought by the Trustee for the Securities of such Series, the Trustee shall
be held to represent all the Holders of the Securities in respect of which such action was taken,
and it shall not be necessary to make any Holders of such Securities parties to any such
proceedings.



21









 





     SECTION 5.03. Application of Proceeds. Any amounts collected by the Trustee for the
Securities of such Series pursuant to this Article 5 in respect of the Securities of any Series
shall be applied in the following order at the date or dates fixed by such Trustee and, in case of
the distribution of such amounts on account of principal or interest, upon presentation of the
several Securities in respect of which amounts have been collected and stamping or otherwise noting
thereon the payment, or issuing Securities of such Series in reduced principal amounts in exchange
for the presented Securities of like Series if only partially paid, or upon surrender thereof if
fully paid:




     FIRST: To the payment of costs and expenses applicable to such Series in respect of
which amounts have been collected, including reasonable compensation to and expenses
incurred by the Trustee and its agents and attorneys and all other amounts due to the
Trustee pursuant to Section 6.07;




     SECOND: To the payment of the amounts then due and unpaid for principal of and
interest on the Securities of such Series in respect of which amounts have been collected,
such payments to be made ratably to the persons entitled thereto, without discrimination or
preference, according to the amounts then due and payable on such Securities and any such
debt for principal and interest; and




     THIRD: To the payment of the remainder, if any, to the Company or as a court of
competent jurisdiction may direct.



     SECTION 5.04. Restoration of Rights on Abandonment of Proceedings. If the Trustee for the
Securities of any Series shall have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee, the Company and the Trustee, subject to the determination in any such
proceeding, shall be restored to their former positions and rights hereunder, and all rights,
remedies and powers of the Company, the Trustee and the Holders shall continue as though no such
proceedings had been taken.



     SECTION 5.05. Limitations on Suits by Holders. No Holder of any Security of any Series shall
have any right, by virtue or by availing of any provision of this Indenture, to institute any
action or proceeding at law or in equity or in bankruptcy or otherwise with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless such Holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance thereof and the Holders of not
less than 25% in aggregate principal amount of the Securities of such Series then Outstanding shall
have made written request upon the Trustee to institute such action or proceedings in its own name
as trustee hereunder and shall have offered to the Trustee security or indemnity satisfactory to it
as it may require, against the costs, expenses and liabilities to be incurred therein or thereby
and the Trustee for 60 days after its receipt of such notice, request and offer of security or
indemnity shall have failed to institute any such action or proceeding and no direction
inconsistent with such written request shall have been given to the Trustee during such 60-day
period by Holders of a majority in principal amount of the Securities of such Series then
Outstanding; it being understood and intended, and being expressly covenanted by the Holder of
every Security with every other Holder of a Security and the Trustee, that no one or



22









 







more Holders
of Securities of any Series shall have any right in any manner whatever, by virtue or by availing
of any provision of this Indenture, to affect, disturb or prejudice the rights of any other such
Holder of Securities, or to obtain or seek to obtain priority over or preference to any other such
Holder or to enforce any right under this Indenture, except in the manner herein provided and for
the equal, ratable and common benefit of all Holders of Securities of the applicable Series.



     SECTION 5.06. Unconditional Right of Holders to Institute Certain Suits. Notwithstanding any
provision in this Indenture and any provision of any Security of such Series, the right of any
Holder of any Security to receive payment of the principal of and (subject to Section 2.07)
interest on such Security at the respective rates, in the respective amount on or after the
respective due dates expressed in such Security of such Series, or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.



     SECTION 5.07. Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default.
Except as provided in Sections 2.10 and 5.05, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy, to the extent permitted by law, shall be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.



     No delay or omission of the Trustee or of any Holder to exercise any right or power accruing
upon any Event of Default occurring and continuing as aforesaid shall impair any such right or
power or shall be construed to be a waiver of any such Event of Default or an acquiescence therein.
Subject to Section 5.05, every power and remedy given by this Indenture
or by law to the Trustee or to the Holders may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or the Holders.



     SECTION 5.08. Control by Holders. The Holders of a majority in aggregate principal amount of
the Securities of each Series affected at the time Outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred by this Indenture on the Trustee with respect to the
Securities of such Series. The Trustee shall have the right to decline to follow any such
direction if (i) such direction shall conflict with law or the provisions of this Indenture or any
indenture supplemental hereto, (ii) the Trustee shall determine that the action or proceedings so
directed would involve the Trustee in personal liability or (iii) the Trustee in good faith shall
so determine that the actions or forbearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all Series so affected not
joining in the giving of said direction, it being understood that the Trustee shall have no duty to
ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders.



     SECTION 5.09. Waiver of Past Defaults. The Holders of a majority in aggregate principal
amount of the Securities of such Series at the time Outstanding, on behalf of the Holders of all
the Securities of such Series, may waive any past default hereunder or its



23









 







consequences, except a
default in the payment of the principal of or interest on any of the Securities of such Series.



     Upon any such waiver, such default shall cease to exist and be deemed to have been cured and
not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured
and not to have occurred 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 5.10. Right of Court to Require Filing of Undertaking to Pay Costs. Any court in its
discretion may require, in any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of such suit. Any
such court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant. The provisions of this Section 5.10 shall
not apply, however, to any suit instituted by the Trustee, to any suit instituted by any Holder or
group of Holders of any Series holding in the aggregate more than 10% in aggregate principal amount
of the Securities of such Series or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or interest on any Security on or after the due date expressed in such
Security.



     SECTION 5.11. Suits for Enforcement. If an Event of Default has occurred, has not been
waived and is continuing, the Trustee in its discretion may proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall
deem most
effectual to protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in this Indenture or to
enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.



ARTICLE 6

CONCERNING THE TRUSTEE




     SECTION 6.01. Duties of Trustee.




     (a) If an Event of Default has occurred and is continuing with respect to the
Securities of any Series, the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in its exercise as a prudent person
would exercise or use under the circumstances in the conduct of such person’s own affairs.




     (b) Except during the continuance of an Event of Default with respect to the Securities
of any Series:




     (i) the Trustee need perform only those duties that are specifically set forth
in this Indenture and the Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this



24









 







Indenture, and no implied covenants or obligations shall be read into this Indenture against the
Trustee; and




     (ii) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, in the case of any such
certificates or opinions which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall 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 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:




     (i) this paragraph (c) does not limit the effect of paragraph (b) of this
Section 6.01;




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




     (iii) 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 5.08.




     (d) Every provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b), (c) and (e) of this Section 6.01.




     (e) No provision of this Indenture shall require the Trustee to extend or risk its own
funds or otherwise incur any financial liability unless it receives indemnity satisfactory
to it against any loss, liability or expense.




     (f) Amounts held by the Trustee in trust hereunder need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no liability for
interest on any amounts received by it hereunder except as otherwise agreed in writing with
the Company.



     SECTION 6.02. Rights of Trustee.




     (a) The Trustee may conclusively rely on, and shall be fully protected in relying upon,
any document believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the document.




     (b) Before the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it



25









 







takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of
Counsel.




     (c) Subject to the provisions of Section 6.01(c), the Trustee shall not be liable for
any action it takes or omits to take in good faith which it believes to be authorized or
within its rights or powers.




     (d) Before the Trustee acts or refrains from acting, the Trustee may consult with
counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon in accordance with such advice
or Opinion of Counsel.




     (e) 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 it against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction.




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




     (g) The Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, Officers’ Certificate or other certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture,
note, coupon, security or other paper or document.




     (h) The Trustee shall not be required to give any bond or surety in respect of the
performance of its powers and duties hereunder.




     (i) The Trustee shall not be bound to ascertain or inquire as to the performance or
observance of any covenants, conditions or agreements on the part of the Company, except as
otherwise set forth herein, but the Trustee may require of the Company full information and
advice as to the performance of the covenants, conditions and agreements contained herein
and shall be entitled in connection herewith to examine the books, records and premises of
the Company.




     (j) The permissive rights of the Trustee to do things enumerated in this Indenture
shall not be construed as a duty and the Trustee shall not be answerable for other than its
negligence or willful default.




     (k) 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.



26









 






     (l) 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.




     (m) Any request or direction of the Company mentioned herein shall be sufficiently
evidenced by a written order of the Company and any resolution of the Board of Directors may
be sufficiently evidenced by a Board Resolution of the Board of Directors.




     (n) The Trustee may request that the Company deliver a certificate setting forth the
names of individuals and titles of officers authorized at such time to take specified
actions pursuant to this Indenture.




     (o) The Trustee shall not be deemed to have notice of or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of
any event which is in fact such an Event of Default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the Securities and
this Indenture.



     SECTION 6.03. 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 Paying Agent,
registrar or co-registrar may do the same with like rights. However, the Trustee must comply with
Sections 6.10 and 6.11.



     SECTION 6.04. Trustee’s Disclaimer. The Trustee makes no representation as to the validity
or adequacy of this Indenture or the Securities. The Trustee shall not be accountable for the
Company’s use of the proceeds from the Securities and shall not be responsible for any statement in
any registration statement for the Securities filed with the Commission under the Securities Act
(other than its Statement of Eligibility on Form T-1) or in the Indenture (other than its
eligibility under Section 6.10) or the Securities (other than its certificate of authentication).



     SECTION 6.05. Notice of Defaults. If a default occurs and is continuing with respect to the
Securities of any Series and is known to the Trustee, the Trustee shall mail to each Holder of the
Securities of such Series notice of such default within 90 days after the occurrence of such
default. Except in the case of a default in the payment of the principal of, premium, if any, or
interest on the Securities of any Series, including payments pursuant to the redemption provisions
of the Securities of such Series, the Trustee may withhold notice if and so long as a committee of
its Responsible Officers in good faith determines that withholding such notice is in the interests
of Holders of such Series.



     SECTION 6.06. Reports by Trustee to Holders. So long as the Securities of any Series are
Outstanding, within 60 days after each May 15 beginning with the May 15 following the date



27









 







of this Indenture, the Trustee shall mail to each Holder of any such Series and each other Person specified
in Section 313(c) of the Trust Indenture Act a brief report dated as of such May 15 that complies
with Section 313(a) of the Trust Indenture Act to the extent required thereby. The Trustee also
shall comply with Section 313(b) of the Trust Indenture Act.



     The Trustee will file a copy of each report, at the time of its mailing to Holders of any
Series, with the Commission and each securities exchange on which the Securities of any Series are
listed. The Company promptly will notify the Trustee whenever the Securities of any Series become
listed on any securities exchange and of any delisting thereof.



     SECTION 6.07. Compensation and Indemnity. The Company:




     (a) will pay to the Trustee from time to time, and the Trustee shall be entitled to,
such compensation as shall be agreed to in writing between the Company and the Trustee for
all services rendered by it hereunder, which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust;




     (b) will reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with any provision
of this Indenture, including the reasonable compensation and expenses of its agents and
counsel, except to the extent any such compensation or expense may be attributable to its
own negligence or willful misconduct; and




     (c) will indemnify the Trustee for, and to hold it harmless against, any loss,
liability, claim, damage or expense arising out of or in connection with the acceptance or
administration of this trust or the performance of its duties hereunder, including the
reasonable costs and expenses of defending itself against or investigating any claim or
liability in connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent that any such loss, liability or expense may be attributable
to its own negligence or willful misconduct.



     As security for the performance of the Company’s obligations under this Section 6.07, the
Trustee shall have a lien prior to the Securities on all funds or property held or collected by the
Trustee, except for those funds that are held in trust to pay the principal of or interest, if any,
on particular Securities.



     “Trustee” for purpose of this Section 6.07 includes any predecessor trustee; provided that the
negligence or willful misconduct of any Trustee shall not be attributable to any other Trustee.



     The Company’s payment obligations pursuant to this Section 6.07 shall constitute additional
indebtedness hereunder and shall survive the discharge and termination of this Indenture and
resignation or removal of the Trustee. When the Trustee incurs expenses after the occurrence of a
default specified in Section 5.01(d), such expenses, including reasonable fees and expenses of
counsel, are intended to constitute expenses of administration under bankruptcy law.



     SECTION 6.08. Replacement of Trustee. The Trustee may resign at any time with respect to
Securities of one or more Series by so notifying the Company. No such resignation,



28









 







however, shall
be effective until a successor Trustee has accepted its appointment pursuant to this Section 6.08.
The Holders of a majority in aggregate principal amount of the Outstanding Securities of any Series
may remove the Trustee with respect to such Series by so notifying the Trustee and the Company.
The Company shall remove the Trustee if:




     (a) the Trustee fails to comply with Section 6.10;




     (b) the Trustee is adjudged bankrupt or insolvent;




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




     (d) the Trustee otherwise becomes incapable of acting.



     If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, with respect to the Securities of one or more Series, the Company shall promptly appoint,
by resolution of its Board of Directors, a successor Trustee with respect to the Securities of
such Series.



     A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon 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 with respect to the Securities of such Series. The successor Trustee
shall mail a notice of its succession to Holders so affected. The retiring Trustee shall promptly
transfer all funds and property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 6.07.



     If a successor Trustee does not take office within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of a majority in aggregate
principal amount of the Outstanding Securities of each affected Series may petition any court of
competent jurisdiction for the appointment of a successor Trustee.



     If the Trustee fails to comply with Section 6.10, any Holder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.



     SECTION 6.09. Successor Trustee by Merger. If the Trustee consolidates with, merges or
converts into or transfers all or substantially all its corporate trust business or assets to
another corporation, the resulting, surviving or transferee corporation without any further act
shall be the successor Trustee.



     SECTION 6.10. Eligibility; Disqualification. The Trustee shall at all times satisfy the
requirements of Section 310(a)(1) of the Trust Indenture Act. The Trustee shall have a combined
capital and surplus of at least $150,000,000 as set forth in its most recent published annual
report of condition. Neither the Company nor any person directly or indirectly controlling,
controlled by or under common control with the Company shall serve as Trustee hereunder. The
Trustee shall comply with Section 310(b) of the Trust Indenture Act.



     SECTION 6.11. Preferential Collection of Claims Against Company. The Trustee shall comply
with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship listed



29









 







in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent indicated therein.



ARTICLE 7

CONCERNING THE HOLDERS




     SECTION 7.01. Evidence of Action Taken by Holders.




     (a) Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Holders of any or all Series may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such specified
percentage of Holders in person or by agent duly appointed in writing. Except as herein
otherwise expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee. Proof of execution of any instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this Indenture and,
subject to Sections 6.01 and 6.02, conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Article 7.




     (b) The ownership of Securities shall be proved by the Security register.



     SECTION 7.02. Proof of Execution of Instruments. Subject to Sections 6.01 and 6.02, the
execution of any instrument by a Holder or his agent or proxy may be proved in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee.



     SECTION 7.03. Holders to Be Treated as Owners. The Company, the Trustee and any agent of the
Company or the Trustee may deem and treat the person in whose name any Security shall be registered
upon the Security register for such Series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal of and interest on
such Security and for all other purposes. Neither the Company nor the Trustee nor any agent of the
Company or the Trustee shall be affected by any notice to the contrary. All payments made to any
such person, or upon his order, shall be valid and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for amounts payable upon any such Security.



     SECTION 7.04. Securities Owned by Company Deemed Not Outstanding. In determining whether the
Holders of the requisite aggregate principal amount of Outstanding Securities of any or all Series
have concurred in any direction, consent or waiver under this Indenture, Securities that are owned
by the Company or any other obligor on the Securities with respect to which such determination is
being made, or by any person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on the Securities with respect to
which such determination is being made, shall be disregarded and deemed not to be Outstanding for
the purpose of any such determination. For the purpose of determining whether the Trustee shall be
protected in relying on any such direction, consent or waiver, only Securities that the Trustee
knows are so owned shall be so



30









 







disregarded. Securities so owned that have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee
the pledgee’s right so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company or any other obligor
on the Securities.



     SECTION 7.05. Right of Revocation of Action Taken. At any time prior to the evidencing to
the Trustee, as provided in Section 7.01, of the taking of any action by the Holders of the
percentage in
aggregate principal amount of the Securities of any Series specified in this Indenture in
connection with such action, any Holder of a Security the serial number of which is shown by the
evidence to be included among the serial numbers of the Securities the Holders of which have
consented to such action, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article 7, may revoke such action so far as concerns such Security.
Except as aforesaid any such action taken by the Holder of any Security shall be conclusive and
binding upon such Holder and upon all future Holders and owners of such Security and of any
Securities issued in exchange or substitution therefor, irrespective of whether or not any notation
in regard thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any Series specified in this
Indenture in connection with such action shall be binding upon the Company, the Trustee and the
Holders of all the Securities affected by such action. This Section shall apply unless otherwise
specified as contemplated by Section 2.03 for the Securities of any Series.



ARTICLE 8

SUPPLEMENTAL INDENTURES




     SECTION 8.01. Supplemental Indentures Without Consent of Holders. Unless otherwise specified
as contemplated by Section 2.03 for the Securities of any Series, the Company, when authorized by
a resolution of its Board of Directors, and the Trustee for the Securities of any Series from time
to time and at any time may enter into an indenture or indentures supplemental hereto, which shall
conform to the provisions of the Trust Indenture Act as in force at the date of the execution
thereof, in form satisfactory to such Trustee, for one or more of the following purposes:




     (a) cure any ambiguity, omission, defect or inconsistency in the Indenture or in any
supplemental indenture that may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture, or to make such other provisions in
regard to matters or questions arising under this Indenture or under any supplemental
indenture as the Board of Directors may deem necessary or desirable and that shall not
materially and adversely affect the interests of the Holders of such Series of Securities;




     (b) to evidence the succession of another corporation to the Company, or successive
successions, and the assumption by the successor corporation of the covenants, agreements
and obligations of the Company pursuant to Article 9;




     (c) to convey, transfer, assign, mortgage or pledge any property or assets to the
Trustee as security for the Securities of one or more Series;



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     (d) to add guarantees with respect to the Securities of any Series or to add to the
covenants of the Company such further covenants, restrictions, conditions or provisions for
the protection of the Holders of Securities of any Series and, if such additional covenants
are to be for the benefit of less than all the Series of Securities, stating that such
covenants are being added solely for the benefit of such Series, or to
release any guarantee where such release is permitted by the applicable supplemental
indenture;




     (e) to establish the form or terms of Securities of any Series as permitted by Sections
2.01 and 2.03;




     (f) to make any changes to comply with the Trust Indenture Act, or any amendment
thereto, or to comply with any requirement of the Commission in connection with the
qualification of the Indenture under the Trust Indenture Act; or




     (g) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more Series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 6.08.



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



     Any supplemental indenture authorized by the provisions of this Section 8.01 may be executed
without the consent of the Holders of any of the Securities at the time Outstanding,
notwithstanding any of the provisions of Section 8.02.



     SECTION 8.02. Supplemental Indentures with Consent of Holders. Except as otherwise specified
as contemplated by Section 2.03 for the Securities of any Series, with the consent (evidenced as
provided in Article 7) of the Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of each Series affected by such supplemental indenture, the Company
(when authorized by a resolution of its Board of Directors) and the Trustee for such Series of
Securities, from time to time and at any time, may enter into an indenture or indentures
supplemental hereto, which shall conform to the provisions of the Trust Indenture Act as in force
at the date of execution thereof, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or
of modifying in any manner the rights of the Holders of the Securities of each such Series. Except
as otherwise specified as contemplated by Section 2.03 for the Securities of any Series, no such
supplemental indenture, however, shall, without the consent of each affected Holder of Securities
of such Series:



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     (a) change the stated maturity date of any Security, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of any interest thereon, or reduce
any amount payable on redemption or repurchase thereof, change the time at which the
Securities of any Series may be redeemed, or impair or affect the right of any Holder
receive payment of principal of, and interest on, any Security or to institute suit
for payment thereof or, if the Securities provide therefor, affect any right of
repayment at the option of the Holder; or




     (b) change the provisions of the Indenture that relate to modifying or amending the
provisions of the Indenture described above.



     This Indenture may not be amended to alter the subordination of any of the Outstanding
Securities of any Series without the written consent of each holder of Senior Indebtedness then
outstanding that would be adversely affected thereby, such written consent to be accompanied by an
Opinion of Counsel or Officers’ Certificate to such effect.



     Upon the request of the Company, accompanied by a copy of a resolution of the Board of
Directors certified by the secretary or an assistant secretary of the Company authorizing the
execution of any such supplemental indenture, and upon the filing with the Trustee for such Series
of Securities of evidence of the consent of the Holders as aforesaid and other documents, if any,
required by Section 7.01, the Trustee for such Series of Securities shall join with the Company in
the execution of such supplemental indenture. If such supplemental indenture affects such
Trustee’s own rights, duties or immunities under this Indenture or otherwise, such Trustee in its
discretion may, but shall not be obligated to, enter into such supplemental indenture.



     It shall not be necessary for the consent of the Holders under this Section 8.02 to approve
the particular form of any proposed supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.



     Promptly after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of this Section 8.02, the Company shall give notice in the manner and to
the extent provided in Section 13.04 to the Holders of Securities of each Series affected thereby
at their addresses as they shall appear on the Security register, setting forth in general terms
the substance of such supplemental indenture. Any failure of the Company to mail such notice, or
any defect therein, shall not in any way impair or affect the validity of any such supplemental
indenture.



     SECTION 8.03. Effect of Supplemental Indenture. Upon the execution of any supplemental
indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to be modified
and amended in accordance therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Company and the Holders of
Securities of each Series affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.



33









 





     SECTION 8.04. Documents to Be Given to Trustee. The Trustee, subject to the provisions of
Sections 6.01 and 6.02, shall be provided with an Officers’ Certificate and an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or permitted by this
Indenture as
conclusive evidence that any supplemental indenture executed pursuant to this Article 8
complies with the applicable provisions of this Indenture.



     SECTION 8.05. Notation on Securities in Respect of Supplemental Indentures. Securities of
any Series authenticated and delivered after the execution of any supplemental indenture pursuant
to the provisions of this Article 8 may bear, upon the direction of the Company, a notation in form
satisfactory to the Trustee for the Securities of such Series as to any matter provided for by such
supplemental indenture. If the Company shall so determine, new Securities of any Series so
modified as to conform, in the opinion of the Board of Directors, to any modification of this
Indenture contained in any such supplemental indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the Outstanding Securities of such
Series.



ARTICLE 9

CONSOLIDATION, MERGER, SALE OR CONVEYANCE




     SECTION 9.01. Company May Consolidate, Etc. on Certain Terms. Unless otherwise specified as
contemplated by Section 2.03 for the Securities of any Series, the Company may consolidate with or
amalgamate or merge with or into, or sell, convey or lease all or substantially all of its assets
to, any other company; provided that in any such case:




     (a) either the Company shall be the continuing company, or the successor company shall
be organized and existing under the laws of the United States, any state thereof, a member
state of the European Union or any political subdivision thereof and shall expressly assume
the due and punctual payment of the principal of and interest on all the Securities, and the
due and punctual performance and observance of all of the covenants and conditions of this
Indenture to be performed or observed by the Company, and




     (b) such continuing or successor company, as the case may be, shall not be in material
default immediately after such amalgamation, merger, consolidation, sale, conveyance or
lease in the performance or observance of any such covenant or condition.



     SECTION 9.02. Successor Corporation Substituted. In case of any such amalgamation, merger,
consolidation, sale, lease or conveyance, and following such an assumption by the successor
corporation, such successor corporation shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein. Such successor corporation may cause to be signed,
and may issue either in its own name or in the name of the Company prior to such succession, any or
all of the Securities issuable hereunder that shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor corporation instead of the Company
and subject to all the terms, conditions and limitations in this Indenture, the Trustee shall
authenticate and shall make available for delivery any Securities that shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and any Securities
which such successor corporation thereafter shall cause to be signed and delivered



34









 







to the Trustee for that purpose. All of the Securities so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued
in accordance with the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.



     In case of any such amalgamation, merger, consolidation, sale, lease or conveyance such
changes in phraseology and form (but not in substance) may be made in the Securities thereafter to
be issued as may be appropriate.



     In the event of any such sale or conveyance the Company (or any successor corporation which
shall theretofore have become such in the manner described in this Article 9) shall be discharged
from all obligations and covenants under this Indenture and the Securities and may be liquidated
and dissolved.



     The provisions of this Section 9.02 shall apply except as otherwise specified as contemplated
by Section 2.03 for the Securities of any Series.



     SECTION 9.03. Opinion of Counsel to Trustee. The Trustee, subject to the provisions of
Sections 6.01 and 6.02, shall receive an Opinion of Counsel, prepared in accordance with Section
13.06, as conclusive evidence that any such consolidation, amalgamation, merger, sale, lease or
conveyance, and any such assumption complies with the applicable provisions of this Indenture.



ARTICLE 10

SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE;

UNCLAIMED FUNDS




     SECTION 10.01. Satisfaction and Discharge of Indenture; Defeasance. Unless otherwise
specified as contemplated by Section 2.03 for the Securities of any Series:




     (a) When (i) all Outstanding Securities of a Series (other than Securities of such
Series replaced or paid pursuant to Section 2.08) have been canceled or delivered to the
Trustee for cancellation or (ii) all Outstanding Securities of such Series have become due
and payable, whether at maturity or as a result of the mailing of a notice of redemption in
connection with a redemption of a Series of Securities, or will become due and payable
within one year, and the Company irrevocably deposits with the Trustee funds in an amount
sufficient or U.S. Government Obligations, the principal of and interest on which will be
sufficient, or a combination thereof sufficient, in the written opinion of a nationally
recognized firm of independent public accountants delivered to the Trustee (which opinion
shall only be required to be delivered if U.S. Government Obligations have been so
deposited), to pay the principal of and interest and on the outstanding Securities when due
at maturity or upon redemption of, including interest thereon to maturity or such redemption
date (other than Securities of such Series replaced or paid pursuant to Section 2.08), and
if in either case the Company pays all other sums payable hereunder by the Company, then
this Indenture shall, subject to Section 10.01(c), cease to be of further effect. The
Trustee shall acknowledge satisfaction and discharge of this



35









 







Indenture on demand of the Company accompanied by an Officers’ Certificate and an
Opinion of Counsel and at the cost and expense of the Company.




     (b) Subject to Sections 10.01(c) and 10.02, the Company at any time may terminate (i)
all of its obligations under the Securities of such Series and this Indenture (“legal
defeasance option”) or (ii) its obligations under Article 3 of this Indenture and Section
4.03 (“covenant defeasance option”). The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option for such Series.




     If the Company exercises its legal defeasance option with respect to Securities of a
Series, payment of the Securities of such Series may not be accelerated because of an Event
of Default.




     Upon satisfaction of the conditions set forth herein and upon request of the Company,
the Trustee shall acknowledge in writing the discharge of those obligations that the Company
terminates.




     (c) Notwithstanding clauses (a) and (b) above, the Company’s obligations in Sections
2.08, 2.10 and 6.07, and in this Article 10 shall survive until the Securities of such
Series have been paid in full. Thereafter, the Company’s obligations in Sections 6.07 and
10.05 and the Trustee’s obligations under Section 10.04 shall survive such satisfaction and
discharge.



     SECTION 10.02 Conditions to Defeasance. Unless otherwise specified as contemplated by
Section 2.03 for the Securities of any Series, the Company may exercise its legal defeasance option
or its covenant defeasance option only if:




     (a) the Company irrevocably deposits in trust with the Trustee money in an amount
sufficient or U.S. Government Obligations, the principal of and interest on which will be
sufficient, or a combination thereof sufficient, to pay the principal of, and premium (if
any) and interest on the Securities of such Series when due at maturity or redemption, as
the case may be, including interest thereon to maturity or such redemption date;




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




     (c) in the case of the covenant defeasance option, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that the Holders of such
Series will not recognize income, gain or loss for Federal Income Tax purposes as a
result



36









 







of such deposit and defeasance and will be subject to Federal Income Tax on the same
amounts, in the same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred.



     SECTION 10.03 Application of Trust Funds. The Trustee shall hold in trust funds or U.S.
Government Obligations deposited with it pursuant to this Article 10. It shall apply the deposited
funds and the proceeds from U.S. Government Obligations through the Paying Agent and in accordance
with this Indenture to the payment of principal of and interest on the Securities of such Series.



     SECTION 10.04 Repayment to Company. The Trustee and the Paying Agent shall promptly turn
over to the Company upon request any funds or U.S. Government Obligations held by it as provided in
this Article 10 which, in the written opinion of nationally recognized firm of independent public
accountants delivered to the Trustee (which opinion shall only be required to be delivered if U.S.
Government Obligations have been so deposited), are in excess of the amount thereof which would
then be required to be deposited to effect an equivalent discharge or defeasance in accordance with
this Article 10.



     Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay
to the Company upon written request any funds held by them for the payment of principal or interest
or that remains unclaimed for two years, and, thereafter, Holders entitled to the funds must look
to the Company for payment as general creditors, and the Trustee and the Paying Agent shall have no
further liability with respect to such funds.



     SECTION 10.05 Indemnity for Government Obligations. The Company shall pay and shall
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against deposited
U.S. Government Obligations or the principal and interest received on such U.S. Government
Obligations.



     SECTION 10.06 Reinstatement. If the Trustee or Paying Agent is unable to apply any funds or
U.S. Government Obligations in accordance with this Article 10 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 of such Series shall be revived and reinstated as though no deposit had occurred
pursuant to this Article 10 until such time as the Trustee or Paying Agent is permitted to apply
all such funds or U.S. Government Obligations in accordance with this Article 10; provided,
however, that, if the Company has made any payment of principal of or interest on, any
Securities of such Series because of the reinstatement of its 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 or Paying Agent.



     This Section 10.06 shall not apply to any Series unless specified as contemplated by Section
2.03 for the Securities of such Series.



37









 





ARTICLE 11

REDEMPTION OF SECURITIES AND SINKING FUNDS




     SECTION 11.01. Applicability of Article. The provisions of this Article 11 shall be
applicable to the Securities of any Series which are redeemable before their maturity or to any
sinking fund for the retirement of Securities of a Series except as otherwise specified as
contemplated by Section 2.03 for Securities of such Series.



     SECTION 11.02. Notice of Redemption; Partial Redemptions. Notice of redemption to the
Holders of Securities of any Series required to be redeemed or to be redeemed as a whole or in part
at the option of the Company shall be given by giving notice of such redemption as provided in
Section 13.04, at least 30 days and not more than 60 days prior to the date fixed for redemption to
such Holders of Securities of such Series. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security of a Series designated for redemption as a whole or in part,
shall not affect the validity of the proceedings for the redemption of any other Security of such
Series.



     The notice of redemption to each such Holder shall specify the date fixed for redemption, the
CUSIP number or numbers for such Securities, the redemption price, the Place of Payment or Places
of Payment, that payment will be made upon presentation and surrender of such Securities, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the case,
that interest accrued to the date fixed for redemption will be paid as specified in such notice,
that on and after said date interest thereon or on the portions thereof to be redeemed will cease
to accrue and, if applicable, that a Holder of Securities who desires to convert Securities for
redemption must satisfy the requirements for conversion contained in such Securities, the then
existing conversion price or rate and the date and time when the option to convert shall expire.
If less than all of the Securities of any Series are to be redeemed, the notice of redemption shall
specify the numbers of the Securities of such Series to be redeemed. In case any Security of a
Series is to be redeemed in part, the notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such Series in principal amount equal
to the unredeemed portion thereof will be issued.



     The notice of redemption of Securities of any Series to be redeemed at the option of the
Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and
at the expense of the Company. If such notice is to be given by the Trustee, the Company shall
provide notice of such redemption to the Trustee at least 45 days prior to the date fixed for
redemption (unless a shorter notice shall be satisfactory to the Trustee). If such notice is given
by the Company, the Company shall provide a copy of such notice given to the Holders of such
redemption to the Trustee at least three Business Days prior to the date such notice is given to
such Holders, but in any event at least 15 days prior to the date fixed for redemption (unless a
shorter notice shall be satisfactory to the Trustee).



     Unless otherwise specified pursuant to Section 2.03, not later than 10:00 a.m. Eastern time on
the redemption date specified in the notice of redemption given as provided in this Section 11.02,
the Company will have on deposit with the Trustee or with one or more Paying Agents (or, if the
Company is acting as its own Paying Agent, set aside, segregate and hold in



38









 







trust as provided in
Section 3.03) funds available on such date (or other forms of property, if permitted by the terms
of the Securities of such Series) sufficient to redeem on the redemption date all the Securities of
such Series so called for redemption at the appropriate redemption price, together with accrued
interest to the date fixed for redemption. If less than all the Outstanding Securities of a Series
are to be redeemed, the Company will deliver to the Trustee at least 45 days prior to the date
fixed for redemption an Officers’ Certificate stating the aggregate principal amount of Securities
to be redeemed (unless a shorter notice shall be satisfactory to the Trustee).



     If less than all the Securities of a Series are to be redeemed, the Trustee shall select
Securities of such Series to be redeemed on a pro rata basis, by lot or by such other method as the
Trustee shall deem to be fair and appropriate, and the Trustee shall promptly notify the Company in
writing of the Securities of such Series selected for redemption and, in the case of any Securities
of such Series selected for partial redemption, the principal amount thereof to be redeemed.
However, if less than all the Securities of any Series with differing issue dates, interest rates
and stated maturities are to be redeemed, the Company in its sole discretion shall select the
particular securities to be redeemed and shall notify the Trustee in writing thereof at least 45
days prior to the relevant redemption date (unless a shorter notice shall be satisfactory to the
Trustee). Securities may be redeemed in part in multiples equal to the minimum authorized
denomination for Securities of such Series or any multiple thereof. For all purposes of this
Indenture, unless the context otherwise requires, all provisions relating to the redemption of
Securities of any Series shall relate, in the case of any Security redeemed or to be redeemed only
in part, to the portion of the principal amount of such Security which has been or is to be
redeemed.



     This Section 11.02 shall apply unless otherwise specified as contemplated by Section 2.03 for
the Securities of any Series.



     SECTION 11.03. Payment of Securities Called for Redemption. If notice of redemption has been
given as above provided, the Securities or portions of Securities specified in such notice shall
become due and payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for redemption, and on and after
said date (unless the Company shall default in the payment of such Securities at the redemption
price, together with interest accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue. Except as provided in Sections 6.01 and
10.04, such Securities shall cease from and after the date fixed for redemption to be entitled to
any benefit or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption. On presentation and surrender of such Securities at a
Place of Payment specified in said notice, said Securities or the specified portions thereof shall
be paid and redeemed by the Company at the applicable redemption price, together with interest
accrued thereon to the date fixed for redemption. If for any Securities the date fixed for
redemption is a regular interest payment date, payment of interest becoming due on such date
shall be payable to the Holders of such Securities registered as such on the relevant record
date subject to the terms and provisions of Section 2.07.



39









 





     If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed
for redemption at the rate of interest borne by the Security.



     Upon presentation of any Security redeemed in part only, the Company shall execute and the
Trustee shall authenticate and make available for delivery to or on the order of the Holder
thereof, at the expense of the Company, a new Security or Securities, of authorized denominations,
in principal amount equal to the unredeemed portion of the Security so presented.



     This Section 11.03 shall apply unless otherwise specified as contemplated by Section 2.03 for
the Securities of any Series.



     SECTION 11.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption.
Securities shall be excluded from eligibility for selection for redemption if they are identified
by registration and certificate number in a written statement signed by an authorized officer of
the Company and delivered to the Trustee at least 30 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and not pledged or
hypothecated by, either (a) the Company or (b) an entity specifically identified in such written
statement as directly or indirectly controlling or controlled by or under direct or indirect common
control with the Company.



     SECTION 11.05. Repayment at the Option of the Holders. Securities of any Series that are
repayable at the option of the Holders before their stated maturity shall be repaid in accordance
with the terms of the Securities of such Series.



     The repayment of any principal amount of Securities pursuant to such option of the Holder to
require repayment of Securities before their stated maturity, for purposes of Section 10.01, shall
not operate as a payment, redemption or satisfaction of the indebtedness represented by such
Securities unless and until the Company, at its option, shall deliver or surrender the same to the
Trustee with a direction that such Securities be cancelled.



ARTICLE 12

CONVERSION OF SECURITIES




     SECTION 12.01. Applicability of Article. Securities of any Series that are convertible into
Common Shares at the option of the Holder of such Securities shall be convertible in accordance
with their terms and, unless otherwise specified as contemplated by Section 2.03 for the Securities
of any Series, in accordance with this Article 12. Each reference in this Article 12 to “a
Security” or “the Securities” refers to the Securities of the particular Series that is convertible
into Common Shares. If more than one Series of Securities with conversion privileges are
Outstanding at any time, the provisions of this Article 12 shall be applied separately to each such
Series.



     SECTION 12.02. Right of Holders to Convert Securities into Common Shares. Subject to the
provisions of this Article 12, at the option of the Holder thereof, any Security of any Series that
is convertible into Common Shares, or any portion of the principal amount thereof which is $1,000
or any integral multiple of $1,000, may be converted into duly authorized, validly issued,



40









 







fully paid and nonassessable Common Shares at any time during the period specified in the Securities of
such Series, at the conversion price or conversion rate for each $1,000 principal amount of
Securities then in effect upon (a) in the case of any Security held in global form, surrender of
the Security or Securities to the Company, at the account specified by the Trustee, and compliance
with the procedures of the depositary in effect at that time and (b) in the case of certificated
Securities, surrender of the Security or Securities to the Company, duly endorsed to the Company or
in blank, at any time during usual business hours at the office or agency to be maintained by it in
accordance with the provisions of Section 3.02, and in either case accompanied by a written notice
of election to convert as provided in Section 12.03.



     If the Holder requests that the Common Shares be registered in a name other than that of the
Holder, such notice also shall be accompanied by a written instrument or instruments of transfer in
form satisfactory to the Company and/or the Trustee, as applicable, duly executed by the Holder
thereof or his attorney duly authorized in writing. All Securities surrendered for conversion
shall, if surrendered to the Company or any conversion agent, be delivered to the Trustee for
cancellation and cancelled by it, or shall, if surrendered to the Trustee, be cancelled by it, as
provided in Section 2.11.



     The initial conversion price or conversion rate in respect of a Series of Securities shall be
as specified in the Securities of such Series. The conversion price or conversion rate will be
subject to adjustment on the terms set forth in Section 12.05 or such other or different terms, if
any, as may be specified by Section 2.03 for Securities of such Series. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion of any portion of
such Security.



     SECTION 12.03. Issuance of Common Shares on Conversions. As promptly as practicable after
the surrender of any Security or Securities for conversion into Common Shares, the Company shall
issue to or upon the written order of the Holder of the Security or Securities so surrendered the
number of duly authorized, validly issued, fully paid and nonassessable Common Shares into which
such Security or Securities may be converted in accordance with the terms thereof and the
provisions of this Article 12. Prior to issuance of such Common Shares, the Company shall require
written notice at its said office or agency from the Holder of the Security or Securities so
surrendered stating that the Holder irrevocably elects to convert such Security or Securities, or,
if less than the entire principal amount thereof is to be converted, stating the portion thereof to
be converted. Such notice shall also state the name or names (with address and social security or
other taxpayer identification number) in which said common shares are to be issued. Such
conversion shall be made at the time that such Security or Securities shall be surrendered for
conversion and such notice shall be received by the Company or the Trustee and such conversion
shall be at the conversion price in effect at such time. The rights of the Holder of such Security
or Securities as a Holder shall cease at such time, and the Person or Persons
entitled to receive the Common Shares upon conversion of such Security or Securities shall be
treated for all purposes as having become either record holder or holders of such Common Shares at
such time. In the case of any Security of any Series that is converted in part only, upon such
conversion the Company shall execute and, upon the Company’s request and at the Company’s expense,
the Trustee or an authenticating agent shall authenticate and deliver to the Holder thereof, as
requested by such Holder, a new Security or Securities of such



41









 







Series of authorized denominations
in aggregate principal amount equal to the unconverted portion of such Security.



     If the last day on which such Security may be converted is not a Business Day in a place where
the conversion agent for that Security is located, such Security may be surrendered to that
conversion agent on the next succeeding day that is a Business Day.



     The Company shall not be required to issue certificates for Common Shares upon conversion
while its stockholder list is closed for a meeting of shareholders or for the payment of dividends
or for any other purpose, but Common Shares shall be issued as soon as the stockholder list shall
again be opened.



     SECTION 12.04. No Payment or Adjustment for Interest or Dividends. Unless otherwise
specified as contemplated by Section 2.03 for Securities of such Series, Securities surrendered for
conversion into Common Shares during the period from the close of business on any regular record
date or special record date next preceding any interest payment date to the opening of business on
such interest payment date (except Securities called for redemption on a redemption date within
such period) when surrendered for conversion must be accompanied by payment (by certified or
official bank check to the order of the Company payable in clearing house funds at the location
where the Securities are surrendered) of an amount equal to the interest thereon which the Holder
is entitled to receive on such interest payment date. Payment of interest shall be made, on such
interest payment date or such other payment date (as set forth in Section 2.07), as the case may
be, to the Holder of the Securities as of such regular record date or special record date, as
applicable. Except where Securities surrendered for conversion must be accompanied by payment as
described above, no interest on converted Securities will be payable by the Company on any interest
payment date subsequent to the date of conversion. No other payment or adjustment for interest or
dividends is to be made upon conversion. Notwithstanding the foregoing, upon conversion of any
Original Issue Discount Security, the fixed number of Common Shares into which such Security is
convertible delivered by the Company to the Holder thereof shall be applied, first, to the portion
attributable to the accrued original issue discount relating to the period from the date of
issuance to the date of conversion of such Security, and, second, to the portion attributable to
the balance of the principal amount of such Security.



     SECTION 12.05. Adjustment of Conversion Price. Unless otherwise specified as contemplated by
Section 2.03 for Securities of such Series, the conversion price for Securities convertible into
Common Shares shall be adjusted from time to time as follows:




     (a) If the Company shall (x) pay a dividend or make a distribution on Common Shares in
Common Shares, (y) subdivide the issued and outstanding Common
Shares into a greater number of shares or (z) consolidate the issued and outstanding
Common Shares into a smaller number of shares, the conversion price for the Securities of
such Series shall be adjusted so that the Holder of any such Security thereafter surrendered
for conversion shall be entitled to receive the number of Common Shares that such Holder
would have owned or have been entitled to receive after the happening of any of the events
described above had such Security been converted immediately prior to the record date in the
case of a dividend or the effective date in the case of subdivision



42









 







or consolidation. An
adjustment made pursuant to this Section 12.05(a) shall become effective immediately after
the record date in the case of a dividend, except as provided in Section 12.05(h), and shall
become effective immediately after the effective date in the case of a subdivision or
consolidation.




     (b) If the Company shall issue rights or warrants to all holders of Common Shares
entitling them (for a period expiring within 45 days after the record date mentioned below)
to subscribe for or purchase Common Shares at a price per share less than the current market
price per share of Common Shares (as defined for purposes of this Section 12.05(b) in
Section 12.05(e)), at the record date for the determination of shareholders entitled to
receive such rights or warrants, the conversion price in effect immediately prior thereto
shall be adjusted so that the same shall equal the price determined by multiplying the
conversion price in effect immediately prior to such record date by a fraction, the
numerator of which shall be the number of Common Shares outstanding on such record date plus
the number of Common Shares which the aggregate offering price of the total number of Common
Shares so offered would purchase at such current market price, and the denominator of which
shall be the number of Common Shares outstanding on such record date plus the number of
additional Common Shares receivable upon exercise of such rights or warrants. Such
adjustment shall be made successively whenever any such rights or warrants are issued, and
shall become effective immediately, except as provided in Section 12.05(h), after such
record date. In determining whether any rights or warrants entitle the Holders of the
Securities of such Series to subscribe for or purchase Common Shares at less than such
current market price, and in determining the aggregate offering price of such Common Shares,
there shall be taken into account any consideration received by the Company for such rights
or warrants plus the exercise price thereof, the value of such consideration or exercise
price, as the case may be, if other than cash, to be determined by the Board of Directors.




     (c) If the Company shall distribute to all holders of Common Shares any shares of
Capital Stock of the Company (other than Common Shares) or evidences of its indebtedness or
assets (excluding cash dividends or distributions paid from retained earnings of the
Company) or rights or warrants to subscribe for or purchase any of its securities (excluding
those rights or warrants referred to in Section 12.05(b)) (any of the foregoing being herein
in this Section 12.05(c) called the “Special Securities”), the conversion price shall be
adjusted as provided in the next sentence unless the Company elects to reserve such Special
Securities for distribution to the Holders of Securities of such Series upon the conversion
so that any such Holder converting such Securities will receive upon such conversion, in
addition to the Common Shares to which such Holder is entitled, the amount and kind of
Special Securities which such Holder would have received if such Holder had, immediately
prior to the record date for the distribution of
the Special Securities, converted Securities into Common Shares. The conversion price,
as adjusted, shall equal the price determined by multiplying the conversion price in effect
immediately prior to such record date by a fraction the numerator of which shall be the
current market price per share (as defined for purposes of this Section 12.05(c) in Section
12.05(e)) of Common Shares on the record date mentioned above less the then fair market
value (as determined by the Board of Directors, whose determination shall, if made in good
faith, be conclusive) of the portion of the Special Securities so distributed



43









 







applicable to
one Common Share, and the denominator of which shall be the current market price per Common
Shares. In the event the then fair market value (as so determined) of the portion of the
Special Securities so distributed applicable to one Common Share is equal to or greater than
the current market price per Common Share on the record date mentioned above, in lieu of the
foregoing adjustment, adequate provision shall be made so that each Holder of Securities of
such Series shall have the right to receive the amount and kind of Special Securities such
holder would have received had he converted such Securities immediately prior to the record
date for the distribution of the Special Securities. Such adjustment shall become effective
immediately, except as provided in Section 12.05(h), after the record date for the
determination of shareholders entitled to receive such distribution.




     (d) If, pursuant to Section 12.05(b) or 12.05(c), the conversion price shall have been
adjusted because the Company has declared a dividend, or made a distribution, on the issued
and outstanding Common Shares in the form of any right or warrant to purchase securities of
the Company, or the Company has issued any such right or warrant, then, upon the expiration
of any such unexercised right or unexercised warrant, the conversion price shall forthwith
be adjusted to equal the conversion price that would have applied had such right or warrant
never been declared, distributed or issued.




     (e) For the purpose of any computation under Section 12.05(b), the current market price
per Common Share on any date shall be deemed to be the average of the reported last sales
prices for the 30 consecutive Trading Days (as defined below) commencing 45 Trading Days
before the date in question. For the purpose of any computation under Section 12.05(c), the
current market price per Common Share on any date shall be deemed to be the average of the
reported last sales prices for the ten consecutive Trading Days before the date in question.
The reported last sales price for each day (whether for purposes of Section 12.05(b),
12.05(c) or 12.06) shall be the reported last sales price, regular way, or, in case no sale
takes place on such day, the average of the reported closing bid and asked prices, regular
way, in either case as reported on the New York Stock Exchange Composite Tape or, if the
Common Shares are not listed or admitted to trading on the New York Stock Exchange, on the
principal national securities exchange on which the Common Shares are listed or admitted to
trading or, if not listed or admitted to trading on any national securities exchange, on the
Nasdaq Global Market or the Nasdaq Global Select Market (collectively, the “Nasdaq Market”)
or, if the Common Shares are not quoted on the Nasdaq Market, the average of the closing bid
and asked prices on such day in the over-the-counter market as furnished by any New York
Stock Exchange member firm regularly making a market in the Common Shares selected for such
purpose by the Board of Directors or, if no such quotations are available, the fair market
value of the Common Shares as determined by a
New York Stock Exchange member firm regularly making a market in the Common Shares
selected for such purpose by the Board of Directors. As used herein, the term “Trading Day”
with respect to the Common Shares means (x) if the Common Shares are listed or admitted for
trading on the New York Stock Exchange or another national securities exchange, a day on
which the New York Stock Exchange or such other national securities exchange is open for
business, (y) if the Common Shares are quoted on the Nasdaq Market, a day on which trades
may be made on the Nasdaq Market or



44









 







(z) otherwise, any day other than a Saturday or Sunday
or a day on which banking institutions in the State of New York are authorized or obligated
by law or executive order to close.




     (f) No adjustment in the conversion price shall be required unless such adjustment
would require an increase or decrease of at least 1% in such price. Any adjustments that by
reason of this Section 12.05(f) are not required to be made, however, shall be carried
forward and taken into account in any subsequent adjustment. Any adjustment required to be
made in accordance with the provisions of this Article 12 shall be made not later than such
time as may be required in order to preserve the tax free nature of a distribution to the
holders of Common Shares. All calculations under this Article 12 shall be made by the
Company and shall be to the nearest cent or to the nearest one-one hundredth of a share, as
the case may be, with one-half cent and one-two hundredth of a share, respectively, being
rounded upward. The Company shall be entitled to make such reductions in the conversion
price, in addition to those required by this Section 12.05, as it in its discretion shall
determine to be advisable in order that any share dividend or bonus issue, subdivision of
            shares, distribution of rights or warrants to purchase shares or securities or distribution
of other assets (other than cash dividends) made by the Company to its shareholders shall
not be taxable.




     (g) Whenever the conversion price is adjusted, the Company shall file with the Trustee,
at the Corporate Trust Office of the Trustee, and with the office or agency maintained by
the Company for the conversion of Securities of such Series pursuant to Section 3.02, an
Officers’ Certificate, setting forth the conversion price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment, which certificate shall be
conclusive evidence of the correctness of such adjustment. Neither the Trustee nor any
conversion agent shall be under any duty or responsibility with respect to any such
certificate or any facts or computations set forth therein, except to exhibit said
certificate from time to time to any Holder of a Security of such Series desiring to inspect
the same. The Company shall promptly cause a notice setting forth the adjusted conversion
price to be mailed to the Holders of Securities of such Series, as their names and addresses
appear upon the Security register.




     (h) In any case in which this Section 12.05 provides that an adjustment shall become
effective immediately after a record date for an event, the Company may defer until the
occurrence of such event (y) issuing to the Holder of any Security of such Series converted
after such record date and before the occurrence of such event the additional Common Shares
issuable upon such conversion by reason of the adjustment required by such event over and
above the Common Shares issuable upon such conversion before
giving effect to such adjustment and (z) paying to such holder any amount in cash in
lieu of any fractional Common Shares pursuant to Section 12.06.



     SECTION 12.06. No Fractional Shares to Be Issued. No fractional Common Shares shall be
issued upon any conversion of Securities. If more than one Security of any Series shall be
surrendered for conversion at one time by the same Holder, the number of full Common Shares which
shall be issuable upon conversion thereof shall be computed on the basis of the aggregate principal
amount of the Securities of such Series (or specified portions thereof to the



45









 







extent permitted
hereby) so surrendered. Instead of a fraction of a Common Share which would otherwise be issuable
upon conversion of any Security or Securities (or specified portions thereof), the Company shall
pay a cash adjustment (computed to the nearest cent, with one-half cent being rounded upward) in
respect of such fraction of a share in an amount equal to the same fractional interest of the
reported last sales price of the Common Shares on the Trading Day next preceding the day of
conversion.



     SECTION 12.07. Notice to Holders of the Securities of a Series Prior to Taking Certain Types
of Action. With respect to the Securities of any Series, in case:




     (a) the Company shall authorize the issuance to all holders of Common Shares of rights
or warrants to subscribe for or purchase shares or any other right;




     (b) the Company shall authorize the distribution to all holders of Common Shares of
evidences of indebtedness or assets (except for cash dividends or distributions paid from
retained earnings of the Company);




     (c) of any subdivision or consolidation of Common Shares or of any amalgamation,
consolidation or merger to which the Company is a party and for which approval by the
shareholders of the Company is required, or of the sale or transfer of all or substantially
all of the assets of the Company; or




     (d) of the voluntary or involuntary dissolution, liquidation or winding up of the
Company;


the Company shall cause to be filed with the Trustee and at the office or agency maintained for the
purpose of conversion of Securities of such Series pursuant to Section 3.02, and shall cause to be
mailed to the Holders of Securities of such Series at their last addresses as they shall appear on
the Security register, at least ten days prior to the applicable record date hereinafter specified,
a notice stating (i) the date as of which the holders of Common Shares to be entitled to receive
any such rights, warrants or distribution are to be determined, or (ii) the date on which any such
share subdivision or consolidation, amalgamation, merger, sale, transfer, dissolution, liquidation,
winding up or other action is expected to become effective, and the date as of which it is expected
that holders of record of Common Shares shall be entitled to exchange their Common Shares for
securities or other property, if any, deliverable upon such share subdivision or consolidation,
amalgamation, merger, sale, transfer, dissolution, liquidation, winding up or other
action. The failure to give the notice required by this Section 12.07 or any defect therein shall
not affect the legality or validity of any distribution, right, warrant, share subdivision or
consolidation, amalgamation, merger, sale, transfer, dissolution, liquidation, winding up or other
action, or the vote upon any of the foregoing.




     SECTION 12.08. Covenant to Reserve Shares for Issuance on Conversion of Securities. The
Company at all times will reserve and keep available out of each class of its authorized Common
Shares, free from preemptive rights, solely for the purpose of issue upon conversion of Securities
of any Series as herein provided, such number of Common Shares as shall then be issuable upon the
conversion of all Outstanding Securities of such Series. All Common Shares which shall be so
issuable, when issued or delivered, shall be duly and validly



46









 







issued Common Shares into which
Securities of such Series are convertible, and shall be fully paid and nonassessable, free of all
liens and charges and not subject to preemptive rights.



     SECTION 12.09. Compliance with Governmental Requirements. If any Common Shares required to
be reserved for purposes of conversion of Securities hereunder require registration or listing with
or approval of any governmental authority under any Federal or State law, pursuant to the
Securities Act or the Securities Exchange Act or any national or regional securities exchange on
which the Common Shares are listed at the time of delivery of any Common Shares, the Company will
use its best efforts to cause such shares to be duly registered, listed or approved, as the case
may be, before such shares may be issued upon conversion.



     SECTION 12.10. Payment of Taxes upon Certificates for Shares Issued upon Conversion. The
issuance of certificates for Common Shares upon the conversion of Securities shall be made without
charge to the converting Holders for any tax (including documentary and stamp taxes) in respect of
the issuance and delivery of such certificates, and such certificates shall be issued in the
respective names of, or in such names as may be directed by, the Holders of the Securities
converted. The Company, however, shall not be required to pay any tax that may be payable in
respect of any transfer involved in the issuance and delivery of any such certificate in a name
other than that of the Holder of the Security converted, and the Company shall not be required to
issue or deliver such certificate unless or until the Person or Persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.



     SECTION 12.11. Trustee’s Duties with Respect to Conversion Provisions. The Trustee and any
conversion agent shall have no duty to any Holder to determine whether any facts exist that may
require any adjustment of the conversion rate, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, in making the same. Neither the
Trustee nor any conversion agent shall be accountable with respect to the registration under
securities laws, listing, validity or value (or the kind or amount) of any Common Shares, or of any
other securities or property, that at any time may be issued or delivered upon the conversion of
any Security, and neither the Trustee nor any conversion agent makes any representation with
respect thereto. Neither the Trustee nor any conversion agent
shall be responsible for any failure of the Company to make any payment or to issue, transfer
or deliver any Common Shares or stock certificates or other securities or property upon the
surrender of any Security for the purpose of conversion. The Trustee and any conversion agent,
subject to the provisions of Section 313 of the Trust Indenture Act, shall not be responsible for
any failure of the Company to comply with any of the covenants contained in this Article 12.



     SECTION 12.12. Trustee Under No Duty to Monitor Stock Price or Calculations. In no event
shall the Trustee or conversion agent be responsible for monitoring the price of the Company’s
common stock, or performing any calculations under this Article 12, such activities being the
responsibility of the Company.



     SECTION 12.13. Conversion Arrangement on Call for Redemption. In connection with any
redemption of Securities, the Company may arrange for the purchase and conversion of any Securities
called for redemption by an agreement with one or more investment bankers or other purchasers to
purchase such Securities by paying to the Trustee or the Paying Agent in trust for



47









 







the Holders of
Securities, one Business Day prior to the redemption date, an amount not less than the redemption
price, together with interest, if any, accrued to the redemption date of such Securities, in
immediately available funds. Notwithstanding anything to the contrary contained in this Article
12, the obligation of the Company to pay the redemption price of such Securities, including all
accrued interest, if any, shall be deemed to be satisfied and discharged to the extent such amount
is so paid by such purchasers. If such an agreement is entered into, any Securities not duly
surrendered for conversion by the Holders thereof, at the option of the Company, may be deemed, to
the fullest extent permitted by law, acquired by such purchasers from such Holders and surrendered
by such purchasers for conversion, all as of immediately prior to the close of business on the last
day on which such Securities called for redemption may be converted in accordance with this
Indenture and the terms of such Securities, subject to payment to the Trustee or Paying Agent of
the above-described amount. The Trustee or the Paying Agent shall hold and pay to the Holders
whose Securities are selected for redemption any such amount paid to it in the same manner as it
would pay funds deposited with it by the Company for the redemption of Securities. Without the
Trustee’s and the Paying Agent’s prior written consent, no arrangement between the Company and such
purchasers for the purchase and conversion of any Securities shall increase or otherwise affect any
of the powers, duties, responsibilities or obligations of the Trustee and the Paying Agent as set
forth in this Indenture. The Company agrees to indemnify the Trustee and the Paying Agent from,
and hold them harmless against, any loss, liability or expense arising out of or in connection with
any such arrangement for the purchase and conversion of any Securities between the Company and such
purchasers, including the reasonable costs and expenses incurred by the Trustee and the Paying
Agent in the defense of any claim or liability arising out of or in connection with the exercise or
performance of any of their powers, duties, responsibilities or obligations under this Indenture.



ARTICLE 13

MISCELLANEOUS PROVISIONS




     SECTION 13.01. Incorporators, Shareholders, Officers and Directors of Company Exempt from
Individual Liability. No recourse under or upon any obligation, covenant or agreement contained in
this Indenture or in any Security shall be had against any incorporator as such or against any
past, present or future director, office, employee, incorporator, agent or shareholder of the
Company or of any successor, either directly or through the Company or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly waived and released
by the acceptance of the Securities by the Holders thereof and as part of the consideration for the
issue of the Securities. This Section 13.01 shall apply unless otherwise specified as contemplated
by Section 2.03 for the Securities of any Series.



     SECTION 13.02. Provisions of Indenture for the Sole Benefit of Parties and Holders. Nothing
in this Indenture or in the Securities, expressed or implied, shall give or be construed to give to
any Person, firm or corporation, other than the parties hereto, any Paying Agent and their
successors hereunder and the Holders of the Securities any legal or equitable right, remedy or
claim under this Indenture or under any covenant or provision herein contained, all such covenants
and provisions being for the sole benefit of the parties hereto and their successors and of the
Holders of the Securities.



48









 





     SECTION 13.03. Successors and Assigns of Company Bound by Indenture. All the covenants,
stipulations, promises and agreements in this Indenture contained by or on behalf of the Company
shall bind its successors and assigns, whether so expressed or not.



     SECTION 13.04. Notices and Demands on Company, Trustee and Holders. Any notice or demand
that by any provision of this Indenture is required or permitted to be given or served by the
Trustee or by the Holders of Securities to or on the Company may be given or served by being
deposited postage prepaid, first-class mail (except as otherwise specifically provided herein)
addressed (until another address of the Company is filed by the Company with the Trustee) to Coeur
d’Alene Mines Corporation, 505 Front Avenue, P.O. Box 1, Coeur d’Alene, Idaho 83816, Attention:
Chief Financial Officer. Any notice, direction, request or demand by the Company or any Holder to
or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if
given or made at the Corporate Trust Office.



     Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed by
first-class mail, postage prepaid to such Holders as their names and addresses appear in the
Security register within the time prescribed. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver. In any case where
notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed to any particular Holder shall affect the sufficiency of such notice with respect
to other Holders,
and any notice which is mailed in the manner herein provided shall be conclusively presumed to
have been duly given.



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



     SECTION 13.05. Electronic Transmission to the Trustee. In addition to the foregoing, the
Trustee agrees to accept and act upon notice, 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 shall not be liable for any losses, costs or expenses arising
directly or indirectly from the Trustee’s reliance upon and compliance in good faith with such
instructions notwithstanding such instructions conflict or are inconsistent with a subsequent
written instruction received by the Trustee following action taken pursuant to prior 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



49









 







limitation the risk of the Trustee acting in good faith on unauthorized instructions, and the risk
of interception and misuse by third parties.



     SECTION 13.06. Officers’ Certificates and Opinions of Counsel; Statements to Be Contained
Therein. Upon any application or demand by the Company to the Trustee to take any action under any
of the provisions of this Indenture, the Company shall furnish to the Trustee an Officers’
Certificate stating that all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been complied with, except that
in the case of any such application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such particular application or
demand, no additional certificate or opinion need be furnished.



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




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




     (b) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




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




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



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



     Any certificate, statement or opinion of an officer of the Company or of counsel may be based,
insofar as it relates to accounting matters, upon a certificate or opinion of or representations by
an accountant or firm of accountants in the employ of the Company, unless such officer or counsel,
as the case may be, knows that the certificate or opinion or representations with respect to the
accounting matters upon which his certificate, statement or



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opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are erroneous.



     SECTION 13.07. Payments Due on Saturdays, Sundays and Holidays. Unless otherwise specified
in a Security, if the date of maturity of interest on or principal of the Securities of any Series
or the date fixed for redemption, repurchase or repayment of any such Security shall not be a
Business Day, payment of interest or principal need not be made on such date, but may be made on
the next succeeding Business Day with the same force and effect as if made on the date of maturity
or the date fixed for redemption, and no interest shall accrue for the period after such date.



     SECTION 13.08. Conflict of any Provision of Indenture with Trust Indenture Act. If and to
the extent that any provision of this Indenture limits, qualifies or conflicts with another
provision included in this Indenture which is required by the Trust Indenture Act, such required
provision shall control. If any provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed
to apply to this Indenture as so modified or to be excluded, as the case may be.



     SECTION 13.09. New York Law to Govern. This Indenture and each Security will be governed by
and construed in accordance with the laws of the State of New York.



     SECTION 13.10. Counterparts. This Indenture may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall together constitute but one and the
same instrument.



     SECTION 13.11. Effect of Headings; Gender. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction hereof. The use
of the masculine, feminine or neuter gender herein shall not limit in any way the applicability of
any term or provision hereof.



     SECTION 13.12. 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 SECURITIES OR THE
TRANSACTION CONTEMPLATED HEREBY.



     SECTION 13.13. 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.



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



	 	 	 	 	 
	 	COEUR D’ALENE MINES CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[                                                                        
        ]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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