Exhibit 1.1
NEWMONT MINING CORPORATION
as Issuer
NEWMONT USA LIMITED
As Guarantor
5.125% Senior Notes due 2019
6.250% Senior Notes due 2039
Underwriting Agreement
September 15, 2009
Deutsche Bank Securities Inc.
UBS Securities LLC
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
and
c/o UBS Securities LLC
677 Washington Blvd.
Stamford, Connecticut 06901
Ladies and Gentlemen:
Newmont Mining Corporation, a Delaware corporation (the “Company”), proposes to issue and sell
to the several Underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you are
acting as representatives (the “Representatives”), $900,000,000 principal amount of its 5.125%
Senior Notes due 2019 (the “Ten Year Notes”) and $1,100,000,000 principal amount of its 6.250%
Senior Notes due 2039 (the “Thirty Year Notes” and together with the Ten Year Notes, the
“Securities”). Payment of principal of, and interest, if any, on, the Securities will be
guaranteed by Newmont USA Limited, a Delaware corporation, as guarantor (the “Guarantor”), pursuant
to the terms and conditions of the guaranty issued under the Indenture (as defined below) (the
“Guaranty”). The Securities and the Guaranty will be issued pursuant to an Indenture to be dated
as of September 18, 2009, among the Company, the Guarantor and The Bank of New York Mellon Trust
Company, N.A., as trustee (the “Trustee”), as supplemented by the first supplemental indenture
thereto (the indenture, as so supplemented, the “Indenture”), to be dated as of September 18, 2009,
among the Company, the Guarantor and the Trustee.
Each of the Company and the Guarantor, jointly and severally, hereby confirms its agreement
with the several Underwriters concerning the purchase and sale of the Securities, as follows:
1.
Registration Statement
. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration
statement on Form S-3ASR (File No. 333-161915), including a prospectus, relating to the Securities.
Such registration statement, as amended at the time it became effective, including the
information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part
of the registration statement at the time of its effectiveness (“Rule 430 Information”), is
referred to herein as the “Registration Statement”; and as used herein, the term “Preliminary
Prospectus” means each prospectus included in such registration statement (and any amendments
thereto) before effectiveness, any prospectus filed with the Commission pursuant to Rule 424(a)
under the Securities Act and the prospectus included in the Registration Statement at the time of
its effectiveness that omits Rule 430 Information, and the term “Prospectus” means the prospectus
in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the
Securities Act) in connection with confirmation of sales of the Securities. If the Company has
filed an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the
“Rule 462 Registration Statement”), then any reference herein to the term “Registration Statement”
shall be deemed to include such Rule 462 Registration Statement. Any reference in this Agreement
to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act, as of the effective date of the Registration Statement or the date of
such Preliminary Prospectus or the Prospectus, as the case may be, and any reference to “amend”,
“amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents filed after such date under
the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Exchange Act”) that are deemed to be incorporated by reference
therein. Capitalized terms used but not defined herein shall have the meanings given to such terms
in the Registration Statement and the Prospectus.
At or prior to the Applicable Time (as defined below), the Company had prepared the following
information (collectively, the “Pricing Disclosure Package”): a Preliminary Prospectus dated
September 15, 2009 and each “free-writing prospectus” (as defined pursuant to Rule 405 under the
Securities Act) listed on Annex C hereto.
“Applicable Time” means 4:35 P.M., New York City time, on September 15, 2009.
2.
Purchase of the Securities by the Underwriters
.
(a) On the basis of the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein (i) the Company agrees to issue and sell the Securities
to the several Underwriters as provided in this Agreement, (ii) the Guarantor agrees to issue and
deliver the Guaranty, and (iii) each Underwriter agrees, severally and not jointly, to purchase
from the Company and the Guarantor the respective principal amount of Securities set forth opposite
such Underwriter’s name in Schedule 1 hereto at a price equal to 98.852% of the principal amount
thereof for the Ten Year Notes (the “Ten Year Purchase Price”) and 97.933% of the principal amount
thereof for the Thirty Year Notes (the “Thirty Year Purchase Price”) plus accrued interest, if any,
from September 18, 2009 to the Closing Date (as defined below).
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(b) The Company and the Guarantor understand that the Underwriters intend to make a public
offering of the Securities as soon after the effectiveness of this Agreement as in the judgment of
the Representatives is advisable, and initially to offer the Securities on the terms set forth in
the Prospectus. The Company and the Guarantor acknowledge and agree that the Underwriters may
offer and sell Securities to or through any affiliate (as hereinafter defined) of an Underwriter.
(c) Payment for the Securities shall be made by wire transfer in immediately available funds
to the account specified by the Company to the Representatives, at the offices of Sullivan &
Cromwell LLP, 125 Broad Street, New York, New York 10004 at 10:00 A.M., New York City time, on
September 18, 2009, or at such other time or place on the same or such other date, not later than
the third business day thereafter, as the Representatives and the Company may agree upon in
writing. The time and date of such payment for the Securities is referred to herein as the
“Closing Date”.
Payment for the Securities to be purchased on the Closing Date shall be made against delivery
to the Representatives for the respective accounts of the several Underwriters of the Securities to
be purchased on such date, with any transfer taxes payable in connection with the sale of such
Securities duly paid by the Company. Delivery of the Securities shall be made through the
facilities of The Depository Trust Company (“DTC”) unless the Representatives shall otherwise
instruct. The Global Notes for the Securities will be made available for inspection by the
Representatives at the office of Sullivan & Cromwell LLP set forth above not later than 1:00 P.M.,
New York City time, on the business day prior to the Closing Date.
(d) The Company and the Guarantor acknowledge and agree that the Underwriters are acting
solely in the capacity of an arm’s length contractual counterparty to the Company and Guarantor
with respect to the offering of Securities contemplated hereby (including in connection with
determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company, the Guarantor or any other person. Additionally, neither the
Representatives nor any other Underwriter is advising the Company, the Guarantor or any other
person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction.
The Company and the Guarantor shall consult with their own respective advisors concerning such
matters and shall be responsible for making its own independent investigation and appraisal of the
transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to
the Company or the Guarantor with respect thereto. Any review by the Underwriters of the Company
and the Guarantor and the transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of the Underwriters and shall not be on
behalf of the Company, the Guarantor or any other person.
3.
Representations and Warranties of the Company
. The Company and the Guarantor,
jointly and severally, represent and warrant to each Underwriter that:
(a)
Preliminary Prospectus.
No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus
included in the Pricing Disclosure Package, at the time of filing thereof, complied in all
material respects with the Securities Act, and no Preliminary Prospectus, at the time of
filing thereof, contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided
that the Company
and the Guarantor make no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in any Preliminary Prospectus, it being understood and
agreed that the only such information furnished by any Underwriter consists of the
information described as such in Section 7(b) hereof.
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(b)
Pricing Disclosure Package
. The Pricing Disclosure Package as of the Applicable
Time did not, and as of the Closing Date will not, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided
that the Company and the Guarantor make no representation and warranty with
respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such
Underwriter through the
Representatives expressly for use in such Pricing Disclosure Package, it being
understood and agreed that the only such information furnished by any Underwriter consists
of the information described as such in Section 7(b) hereof.
(c)
Issuer Free Writing Prospectus.
Other than the Registration Statement, the
Preliminary Prospectus and the Prospectus, the Company and the Guarantor (including their
agents and representatives, other than the Underwriters in their capacity as such) have not
prepared, used, authorized, approved or referred to and will not prepare, use, authorize,
approve or refer to any “written communication” (as defined in Rule 405 under the Securities
Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities
(each such communication by the Company, the Guarantor, or their agents and representatives
(other than a communication referred to in clause (i) below) an “Issuer Free Writing
Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section
2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) the documents
listed on Annex C hereto, any electronic road show and any other written communications
approved in writing in advance by the Representatives. Each such Issuer Free Writing
Prospectus (w) complied in all material respects with the Securities Act, (x) has been or
will be (within the time period specified in Rule 433) filed in accordance with the
Securities Act (to the extent required thereby), (y) does not include any information that
conflicts with the information contained in the Registration Statement, including any
document incorporated by reference therein that has not be superseded or modified and (z)
when taken together with the Preliminary Prospectus accompanying, or delivered prior to
delivery of, such Issuer Free Writing Prospectus, did not, and as of the Closing Date will
not, contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
provided
that the Company and the Guarantor
make no representation and warranty with respect to any statements or omissions made in each
such Issuer Free Writing Prospectus or Preliminary Prospectus in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company in writing
by such Underwriter through the Representatives expressly for use in such Issuer Free
Writing Prospectus or Preliminary Prospectus, it being understood and agreed that the only
such information furnished by any Underwriter consists of the information described as such
in Section 7(b) hereof.
(d)
Registration Statement and Prospectus.
The Registration Statement is an “automatic
shelf registration statement” as defined under Rule 405 of the Securities Act that has been
filed with the Commission not earlier than three years prior to the date hereof; and no
notice of objection of the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has
been received by the Company. No order suspending the effectiveness of the Registration
Statement has been issued by the Commission, and no proceeding for that purpose or pursuant
to Section 8A of the Securities Act against the Company or related to the offering of the
Securities has been initiated or threatened by the Commission; as of the applicable
effective date of the Registration Statement and any
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post-effective amendment thereto, the
Registration Statement and any such post-effective amendment complied and will comply in all
material respects with the Securities Act, and did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading; and as of the date of
the Prospectus and any amendment or supplement thereto and as of the Closing Date, the
Prospectus will not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided
that the Company
and the Guarantor make no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the
Registration Statement and the Prospectus and any amendment or supplement thereto, it
being understood and agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 7(b) hereof.
(e)
Incorporated Documents.
The documents incorporated by reference in the
Registration Statement, the Prospectus and the Pricing Disclosure Package, when they were
filed with the Commission conformed in all material respects to the requirements of the
Exchange Act, and none of such documents contained any untrue statement of a material fact
or omitted to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and any further documents
so filed and incorporated by reference in the Registration Statement, the Prospectus or the
Pricing Disclosure Package, when such documents are filed with the Commission, will conform
in all material respects to the requirements of the Exchange Act and will not contain any
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading.
(f)
Financial Statements.
The financial statements (including the related notes
thereto) of the Company and its consolidated subsidiaries included or incorporated by
reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus
comply in all material respects with the applicable requirements of the Securities Act and
the Exchange Act, as applicable, and present fairly the consolidated financial position of
the Company and its consolidated subsidiaries as of the dates indicated and the results of
their operations and the changes in their cash flows for the periods specified; such
financial statements have been prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis throughout the periods covered
thereby, and any supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be stated therein; and the
other financial information included or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Prospectus has been derived from the
accounting records of the Company and its consolidated subsidiaries and presents fairly the
information shown thereby.
(g)
No Material Adverse Change.
Since the date of the most recent financial statements
of the Company included or incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, (i) there has not been any change in the
capital stock (other than the issuance of shares of Common Stock upon exercise of stock
options and warrants described as outstanding in, and the grant of options and awards under
existing equity incentive plans described in, the Registration Statement, the Pricing
Disclosure Package and the Prospectus), or increase in short-term debt or long-term debt of
the Company and its subsidiaries taken as a whole (except as disclosed on Schedule 2 hereto), or any dividend or
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distribution of any kind declared, set aside for payment, paid
or made by the Company on any class of capital stock (other than the regular quarterly
dividend declared on July 22, 2009 and payable on September 28, 2009), or any material
adverse change, or except as otherwise disclosed in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, any development involving a prospective material
adverse change, in or affecting the business, properties, management, financial position,
stockholders’ equity, results of operations or prospects of the Company and its subsidiaries
taken as a whole; (ii) neither the Company nor any of its subsidiaries has entered into any
transaction or agreement (whether or not in the ordinary course of business) that is
material to the Company and its subsidiaries taken as a whole or incurred any liability or
obligation, direct or contingent, that is material to the Company and its subsidiaries taken
as a whole; and (iii) neither the Company nor any of its subsidiaries has sustained any loss
or interference with its business that is material to the Company and its subsidiaries taken
as a whole and that is either from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor disturbance or dispute or any
action, order or decree of any court or arbitrator or governmental or regulatory authority,
except in each case as otherwise disclosed in or contemplated by the Registration Statement,
the Pricing Disclosure Package and the Prospectus.
(h)
Organization and Good Standing.
The Company, the Guarantor and each of the
Company’s Significant Subsidiaries (as set forth in Schedule 3 hereto, the “Significant
Subsidiaries”) have been duly organized and are validly existing and in good standing under
the laws of their respective jurisdictions of organization, are duly qualified to do
business and are in good standing (to the extent such concept exists in the jurisdiction in
question) in each jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification, and have all power
and authority necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to be so qualified or in good
standing or have such power or authority would not, individually or in the aggregate, have a
material adverse effect on the business, properties, management, financial position,
stockholders’ equity, results of operations or prospects of the Company and its subsidiaries
taken as a whole or on the performance by the Company of its obligations under the
Transaction Documents (as defined below) (a “Material Adverse Effect”), and, other than the
Guarantor and the Significant Subsidiaries (which directly or indirectly own over 10% of the
Company’s consolidated assets or derive over 10% of the Company’s consolidated revenues),
there are no subsidiaries of the Company that directly own (i.e., other than through the
ownership of equity interests of other subsidiaries of the Company) over 10% of the
Company’s consolidated assets or directly derive (i.e., other than as a result of the
ownership of equity interests of other subsidiaries of the Company) over 10% of the
Company’s consolidated revenues.
(i)
Capitalization.
The Company has an authorized capitalization as set forth in the
Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading
“Capitalization”; all the outstanding shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid and non-assessable and are not subject
to any pre-emptive or similar rights.
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(j)
Due Authorization.
Each of the Company and the Guarantor has full right, power and
authority to execute and deliver this Agreement and the Indenture and to perform its
respective obligations hereunder and thereunder; the Company has full right, power and
authority to execute the Securities and to perform its obligations thereunder; the Guarantor
has full right, power and authority to execute and deliver the Guaranty and to perform its
obligations thereunder (collectively, the Guaranty, the Indenture, this Agreement and the
Securities are referred to herein as the “Transaction Documents”); and all action required
to be taken for the due and proper authorization, execution and delivery by it of each of
the Transaction Documents and the consummation by it of the transactions contemplated
thereby has been duly and validly taken by the Company and the Guarantor, as the case may
be.
(k)
The Indenture
. The Indenture has been duly authorized by the Company and the
Guarantor and upon effectiveness of the Registration Statement and on the Closing Date was
or will have been duly qualified under the Trust Indenture Act and, when duly executed and
delivered in accordance with its terms by each of the parties thereto, will constitute a
valid and legally binding agreement of the Company and the Guarantor enforceable against the
Company and the Guarantor in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights
generally or by equitable principles relating to enforceability (collectively, the
“Enforceability Exceptions”).
(l)
Underwriting Agreement.
This Agreement has been duly authorized, executed and
delivered by the Company and the Guarantor.
(m)
The Securities and the Guaranties.
The Securities to be issued and sold by the
Company hereunder have been duly authorized and, when duly executed, authenticated, issued
and delivered as provided in the Indenture and paid for as provided herein, will be duly and
validly issued and outstanding and will constitute valid and legally binding obligations of
the Company enforceable against the Company in accordance with their terms, subject to the
Enforceability Exceptions, and will be entitled to the benefit of the Indenture. The
Guaranty has been duly authorized by the Guarantor and, when executed and delivered by the
Guarantor and affixed to the Securities, will constitute the valid and legally binding
obligation of the Guarantor, will be in the form contemplated by the Indenture, entitled to
the benefits of the Indenture and enforceable against the Guarantor in accordance with its
terms, subject to the Enforceability Exceptions.
(n)
No Violation or Default.
None of the Company, the Guarantor or any of the
Significant Subsidiaries is in violation of its charter or by-laws or similar organizational
documents. Neither the Company nor any of its subsidiaries (including the Guarantor) is
(i) in default, and no event has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject; or (ii) in violation of any law
or statute or any judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority, except for any such default or violation that would
not, individually or in the aggregate, have a Material Adverse Effect.
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(o)
No Conflicts.
The execution, delivery and performance by the Company and the
Guarantor of each of the Transaction Documents to which each is a party, the issuance and
sale of the Securities and the consummation of the transactions contemplated by the
Transaction Documents will not (i) conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, (ii) result in any violation
of the provisions of the charter or by-laws or similar organizational documents of the
Company or any of its subsidiaries or (iii) result in the violation of any law or statute or
any judgment, order, rule or regulation of any court or arbitrator or governmental or
regulatory authority, except, in the case of clauses (i) and (iii) above, for any such
conflict, breach, violation or default that would not, individually or in the aggregate,
have a Material Adverse Effect.
(p)
No Consents Required.
No consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company and the Guarantor of
each of the Transaction Documents to which it is a party, the issuance and sale of the
Securities and the consummation of the transactions contemplated by the Transaction
Documents, except for the registration of the Securities under the Securities Act, the
qualification of the Indenture under the Trust Indenture Act and such consents, approvals,
authorizations, orders and registrations or qualifications as may be required under
applicable state or other securities laws in connection with the purchase and distribution
of the Securities by the Underwriters.
(q)
Legal Proceedings.
Except as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of its subsidiaries
is the subject that, individually or in the aggregate, if determined adversely to the
Company or any of its subsidiaries, would reasonably be expected to have a Material Adverse
Effect; no such investigations, actions, suits or proceedings are, to the knowledge of the
Company, threatened or contemplated by any governmental or regulatory authority or
threatened by others; and (i) there are no current or pending legal, governmental or
regulatory actions, suits or proceedings that are required under the Securities Act to be
described in the Registration Statement, the Pricing Disclosure Package or the Prospectus
that are not so described in the Registration Statement, the Pricing Disclosure Package and
the Prospectus and (ii) there are no statutes, regulations or contracts or other documents
that are required under the Securities Act to be filed as exhibits to the Registration
Statement or described in the Registration Statement, the Pricing Disclosure Package or the
Prospectus that are not so filed as exhibits to the Registration Statement or described in
the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(r)
Independent Accountants
. PricewaterhouseCoopers LLP, which has certified certain
financial statements of the Company and its subsidiaries, is an independent registered
public accounting firm with respect to the Company and its subsidiaries within the
applicable rules and regulations adopted by the Commission and the Public Company Accounting
Oversight Board (United States) and as required by the Securities Act.
(s)
Title to Real and Personal Property
. The Company and its subsidiaries have good
title in fee simple (in the case of real property) to, or have valid rights to lease or
otherwise use, all items of real and personal property and assets that are material to the
respective businesses of the Company and its subsidiaries, in each case free and clear of
all liens, encumbrances, claims and defects and imperfections of title except those that (i)
do not materially interfere with the use made and proposed to be made of such property by
the Company and its subsidiaries or (ii) would not, individually or in the aggregate, have a
Material Adverse Effect.
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(t)
Title to Intellectual Property
. Each of the Company, the Guarantor and the
Significant Subsidiaries own or possess adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names, trademark registrations, service mark
registrations, copyrights, licenses and know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems or
procedures) (collectively, the “Intellectual Property”) reasonably necessary for the conduct
of their respective businesses as currently conducted and as proposed to be conducted,
except where the failure to own or possess such Intellectual Property would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse Effect. The
Company and its subsidiaries (including the Guarantor) have not received any notice of
infringement, misappropriation or conflict with the asserted rights of others with respect
to any Intellectual Property except for notices the content of which if accurate would not,
individually or in the aggregate, have a Material Adverse Effect.
(u)
No Undisclosed Relationships
. No relationship, direct or indirect, exists between
or among the Company or any of its subsidiaries, on the one hand, and the directors,
officers, stockholders or affiliates of the Company or any of its subsidiaries, on the
other, that is required by the Securities Act to be described in the Registration Statement
and the Prospectus and that is not so described in such documents and in the Pricing
Disclosure Package.
(v)
Investment Company Act
. Neither the Company nor the Guarantor is, and after giving
effect to the offering and sale of the Securities and the application of the proceeds
thereof as described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus,
neither of them will be required to register as an “investment company” or an entity
“controlled” by an “investment company” within the meaning of the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission thereunder (collectively,
the “Investment Company Act”).
(w)
Taxes.
Each of the Company and its subsidiaries has filed all federal, state,
local and foreign tax returns required to be filed by it through the date hereof and paid
all taxes as shown thereon and all assessments received by it to the extent required to be
paid and not being contested in good faith, except where the failure to do so would not have
a Material Adverse Effect; and to the Company’s knowledge, except as otherwise disclosed in
the Registration Statement, the Pricing Disclosure Package and the Prospectus, there is no
tax deficiency that has been, or could reasonably be expected to be, asserted in writing
against the Company or any of its subsidiaries or any of their respective properties or
assets that if ultimately upheld would have a Material Adverse Effect.
(x)
Licenses and Permits.
The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or
the conduct of their respective businesses as described in the Registration Statement, the
Pricing Disclosure Package and the Prospectus, except where the failure to possess or make
the same would not, individually or in the aggregate, have a Material Adverse Effect; and
except as described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, neither the Company nor any of its subsidiaries has received notice of any
revocation or modification of any such license, certificate, permit or authorization or has
any reason to believe that any such license, certificate, permit or authorization will not
be renewed in the ordinary course, which would, individually or in the aggregate, have a
Material Adverse Effect.
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(y)
No Labor Disputes.
No labor disturbance by or dispute with employees of the
Company or any of its subsidiaries exists or, to the knowledge of the Company, is
contemplated or threatened, and the Company is not aware of any existing or imminent labor
disturbance by, or dispute with, the employees of any of its or its subsidiaries’ principal
suppliers, contractors or customers, except as would not, individually or in the aggregate,
have a Material Adverse Effect.
(z)
Compliance with and Liability under Environmental Laws.
Except as described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, and except for
matters that would not individually or in the aggregate reasonably be expected to have a
Material Adverse Effect, (i) the Company and its subsidiaries are, and at all prior times
were, in compliance with any and all applicable federal, state, local and foreign laws,
rules, regulations, requirements, decisions, judgments, decrees, orders and the common law
relating to pollution or the protection of the environment, natural resources or human
health or safety, including those relating to the generation, storage, treatment, use,
handling, transportation, Release or threat of Release of Hazardous Materials (as defined
below) (collectively, “Environmental Laws”); (ii) the Company and its subsidiaries have
received and are in compliance with all permits, licenses, certificates or other
authorizations or approvals required of them under applicable Environmental Laws to conduct
their respective businesses; (iii) the Company and its subsidiaries have not received notice
of any actual or potential liability under or relating to, or actual or potential violation
of, any Environmental Laws, including for the investigation or remediation of any Release or
threat of Release of Hazardous Materials, and have no knowledge of any event or condition
that would reasonably be expected to result in any such notice; (iv) neither the Company nor
any of its subsidiaries is conducting or paying for, in whole or in part, any investigation,
remediation or other corrective action pursuant to any Environmental Law at any
location; (v) neither the Company nor any of its subsidiaries is a party to any order,
decree or agreement that imposes any obligation or liability under any Environmental Law;
(vi) other than as reserved on the Company’s financial statements, there are no costs or
liabilities associated with Environmental Laws of or relating to the Company or its
subsidiaries; and (vii) (A) there are no proceedings that are pending, or that are known to
be contemplated, against the Company or any of its subsidiaries under any Environmental Laws
in which a governmental entity is also a party, other than such proceedings regarding which
it is reasonably believed no monetary sanctions of $100,000 or more will be imposed, and (B)
the Company and its subsidiaries are not aware of any facts or issues regarding compliance
with Environmental Laws, or liabilities or other obligations under Environmental Laws.
(aa)
Compliance with ERISA.
To the best knowledge of the Company (i) each employee
benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), for which the Company or any member of its “Controlled
Group” (defined as any organization which is a member of a controlled group of corporations
within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the
“Code”)) would reasonably be expected to have any material liability (each, a “Plan”) has
been maintained in compliance with its terms and the requirements of ERISA and the Code in
all material respects, except where the failure to be in such compliance would not,
individually or in the aggregate, have a Material Adverse Effect; (ii) no material
prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the
Code, has occurred with respect to any Plan excluding transactions effected pursuant to a
statutory or administrative exemption that could reasonably be expected to result in a
material liability to the Company or its subsidiaries; (iii) for each Plan that is subject
to the funding rules of Section 412 of the Code or Section 302 of ERISA, the minimum funding
standard of Section 412 of the Code or Section 302 of ERISA, as
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applicable, has been satisfied (without taking into account any waiver thereof or extension of any amortization
period) and is reasonably expected to be satisfied in the future (without taking into
account any waiver thereof or extension of any amortization period); (iv) except as
otherwise disclosed in the Registration Statement, Pricing Disclosure Package and the
Prospectus, there is no material difference between the fair market value of the assets of
each Plan and the present value of all benefits accrued under such Plan (determined based on
those assumptions used to fund such Plan); (v) no “reportable event” (within the meaning of
Section 4043(c) of ERISA) has occurred or is reasonably expected to occur for which the
Company would have liability; (vi) neither the Company nor any member of the Controlled
Group has incurred, nor reasonably expects to incur, any liability under Title IV of ERISA
(other than contributions to the Plan or premiums to the Pension Benefit Guarantee
Corporation, in the ordinary course and without default) in respect of a Plan (including a
“multiemployer plan”, within the meaning of Section 4001(a)(3) of ERISA); and (vii) to the
knowledge of the Company, there is no pending audit or investigation by the Internal Revenue
Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other
governmental agency or any foreign regulatory agency with respect to any Plan that could
reasonably be expected to result in material liability to the Company or its subsidiaries,
except, in the case of clause (iv), (v) and (vi) above, where such liability would not,
individually or in the aggregate, have a Material Adverse Effect. No material increase in
the Company and its subsidiaries’ “accumulated post-retirement benefit obligations” (within
the meaning of Statement of Financial Accounting Standards 106) compared to the amount of
such obligations in the Company and its subsidiaries’ most recently completed fiscal year
has occurred or is reasonably likely to occur.
(bb)
Disclosure Controls
. The Company and its subsidiaries on a consolidated basis
maintain an effective system of “disclosure controls and procedures” (as defined in Rule
13a-15(e) of the Exchange Act) that complies with the requirements of the Exchange Act and
that has been designed to ensure that information required to be disclosed by the Company in
reports that
it files or submits under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the Commission’s rules and forms, including
controls and procedures designed to ensure that such information is accumulated and
communicated to the Company’s management as appropriate to allow timely decisions regarding
required disclosure. The Company and its subsidiaries on a consolidated basis have carried
out evaluations of the effectiveness of their disclosure controls and procedures as required
by Rule 13a-15 of the Exchange Act.
(cc)
Accounting Controls.
The Company and its subsidiaries on a consolidated basis
maintain systems of “internal control over financial reporting” (as defined in Rule
13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and
have been designed by, or under the supervision of, their respective principal executive and
principal financial officers, or persons performing similar functions, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted accounting
principles, including, but not limited to, internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to assets is
permitted only in accordance with management’s general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. Based on the
Company’s most recent evaluation of its internal controls over financial reporting pursuant
to Rule 13a-15(c) of the Exchange Act, there are no material weaknesses in the Company’s
internal controls. The Company’s auditors and the Audit Committee of the Board of Directors
of the Company have been advised of: (i) all significant deficiencies and material
weaknesses in the design or operation of internal controls over financial reporting which
have adversely affected or are reasonably likely to adversely affect the Company’s ability
to record, process, summarize and report financial information; and (ii) any fraud, whether
or not material, that involves management or other employees who have a significant role in
the Company’s internal controls over financial reporting.
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(dd)
Insurance.
The Company and its subsidiaries are insured by insurers of recognized
financial responsibility or are self insured against such losses and risks and in such
amounts as are reasonable and consistent with sound business practice.
(ee)
No Unlawful Payments.
Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or other person associated
with or acting on behalf of the Company or any of its subsidiaries has (i) used any
corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds; (iii) violated or
is in violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv) made
any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
(ff)
Compliance with Money Laundering Laws
. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the
rules and regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency (collectively, the
“Money Laundering Laws”) and no action, suit or proceeding by or before any court or
governmental agency,
authority or body or any arbitrator involving the Company, the Guarantor or any of its
subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of
the Company, threatened.
(gg)
Compliance with OFAC.
None of the Company, any of its subsidiaries or, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of the Company
or any of its subsidiaries is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the
Company will not, directly or indirectly, use the proceeds of the offering of the Securities
hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered by OFAC.
(hh)
No Broker’s Fees.
Neither the Company nor any of its subsidiaries is a party to
any contract, agreement or understanding with any person (other than this Agreement) that
would give rise to a valid claim against the Company or any of its subsidiaries or any
Underwriter for a brokerage commission, finder’s fee or like payment in connection with the
offering and sale of the Securities.
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(ii)
Forward-Looking Statements.
No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in the
Registration Statement, the Pricing Disclosure Package or the Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(jj)
Statistical and Market Data.
Nothing has come to the attention of the Company or
the Guarantor that has caused the Company or the Guarantor to believe that the statistical
and market-related data included or incorporated by reference in the Registration Statement,
the Pricing Disclosure Package and the Prospectus is not based on or derived from sources
that are reliable and accurate in all material respects.
(kk)
Sarbanes-Oxley Act
. There is and has been no failure on the part of the Company
or the Guarantor or, to the knowledge of the Company or the Guarantor, any of the Company’s
or the Guarantor’s directors or officers, in their capacities as such, to comply with any
provision of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith (the “Sarbanes-Oxley Act”), including Section 402 related to loans and
Sections 302 and 906 related to certifications.
(ll)
Status under the Securities Act
. At the time of filing the Registration Statement
and any post-effective amendment thereto, at the earliest time thereafter that the Company
or any offering participant made a
bona fide
offer (within the meaning of Rule 164(h)(2)
under the Securities Act) of the Securities and at the date hereof, the Company was not and
is not an “ineligible issuer,” and is a well-known seasoned issuer, in each case as defined
in Rule 405 under the Securities Act. The Company has paid the registration fee for this
offering pursuant to Rule 456(b)(1) under the Securities Act or will pay such fee within the
time period required by such rule and in any event prior to the Closing Date.
4.
Further Agreements of the Company
. Each of the Company and the Guarantor, as the
case may be, jointly and severally, covenants and agrees with each Underwriter that:
(a)
Required Filings.
The Company will file the final Prospectus with the Commission
within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the
Securities Act, will file any Issuer Free Writing Prospectus to the extent required by Rule
433 under the Securities Act; will file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the
Prospectus and for so long as the delivery of a prospectus is required in connection with
the offering or sale of the Securities; and will furnish copies of the Prospectus and
electronic copies of each Issuer Free Writing Prospectus (to the extent not previously
delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on
the business day next succeeding the date of this Agreement in such quantities as the
Representatives may reasonably request. The Company will pay the registration fee for this
offering within the time period required by Rule 456(b)(1) under the Securities Act and in
any event prior to the Closing Date.
(b)
Delivery of Copies.
The Company will deliver, without charge, to each Underwriter
(A) a conformed copy of the Registration Statement as originally filed and each amendment
thereto (without exhibits) and (B) during the Prospectus Delivery Period (as defined below),
as many copies of the Prospectus (including all amendments and supplements thereto and
documents incorporated by reference therein and each Issuer Free Writing Prospectus) as the
Representatives may reasonably request. As used herein, the term “Prospectus Delivery
Period” means such period of time after the first date of the public offering of the
Securities as in the opinion of counsel for the Underwriters a prospectus relating to the
Securities is required by law to be delivered (or required to be delivered but for Rule 172
under the Securities Act) in connection with sales of the Securities by any Underwriter or
dealer.
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(c)
Amendments or Supplements, Issuer Free Writing Prospectuses.
Before preparing,
using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus,
and before filing any amendment or supplement to the Registration Statement or the
Prospectus, whether before or after the time that the Registration Statement becomes
effective, the Company will furnish to the Representatives and counsel for the Underwriters
a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review
and will not prepare, use, authorize, approve, refer to or file any such Issuer Free Writing
Prospectus or file any such proposed amendment or supplement to which the Representatives
reasonably objects.
(d)
Notice to the Representatives.
The Company will advise the Representatives
promptly, and confirm such advice in writing, (i) when the Registration Statement has become
effective; (ii) when any amendment to the Registration Statement has been filed or becomes
effective; (iii) when any supplement to the Prospectus or any Issuer Free Writing Prospectus
or any amendment to the Prospectus has been filed; (iv) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to the Prospectus
or the receipt of any comments from the Commission relating to the Registration Statement or
any other request by the Commission for any additional information; (v) of the issuance by
the Commission of any order suspending the effectiveness of the Registration Statement or
preventing or suspending the use of any Preliminary Prospectus, any of the Pricing
Disclosure Package or the Prospectus or the initiation or threatening of any proceeding for
that purpose or pursuant to Section 8A of the Securities Act; (vi) of the occurrence of any
event within the Prospectus Delivery Period as a result of which the Prospectus, the Pricing
Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances
existing when the Prospectus, the Pricing Disclosure Package or any such Issuer Free Writing
Prospectus is delivered to a purchaser, not misleading; (vii) of the receipt by the Company
or the Guarantor of any notice of objection of the Commission to the use of the Registration
Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the
Securities Act; and (viii) of the receipt by the Company or the Guarantor of any notice with
respect to any suspension of the qualification of the Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and the Company and the Guarantor will use their best efforts to prevent the
issuance of any such order suspending the effectiveness of the Registration Statement,
preventing or suspending the use of any Preliminary Prospectus, any of the Pricing
Disclosure Package or the Prospectus or suspending any such qualification of the Securities
and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.
(e)
Ongoing Compliance.
(1) If during the Prospectus Delivery Period (i) any event
shall occur or condition shall exist as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading or
(ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company
will immediately notify the Underwriters thereof and forthwith prepare and, subject to
paragraph (c) above, file with the Commission and furnish to the Underwriters and to such
dealers as the Representatives
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may designate such amendments or supplements to the Prospectus as may be necessary so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will comply with law and
(2) if at any time prior to the Closing Date (i) any event shall occur or condition shall
exist as a result of which the Pricing Disclosure Package as then amended or supplemented
would include any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the circumstances
existing when the Pricing Disclosure Package is delivered to a purchaser, not misleading or
(ii) it is necessary to amend or supplement the Pricing Disclosure Package to comply with
law, the Company will immediately notify the Underwriters thereof and forthwith prepare and,
subject to paragraph (c) above, file with the Commission (to the extent required) and
furnish to the Underwriters and to such dealers as the Representatives may designate such
amendments or supplements to the Pricing Disclosure Package as may be necessary so that the
statements in the Pricing Disclosure Package as so amended or supplemented will not, in the
light of the circumstances existing when the Pricing Disclosure Package is delivered to a
purchaser, be misleading or so that the Pricing Disclosure Package will comply with law.
(f)
Blue Sky Compliance.
The Company and the Guarantor will qualify the Securities for
offer and sale under the securities or Blue Sky laws of such states in the United States as
the Representatives shall reasonably request and will continue such qualifications in effect
so long as required for distribution of the Securities;
provided
that neither the
Company nor the Guarantor shall be required to (i) qualify as a foreign corporation or other
entity or as a dealer in securities in any such jurisdiction where it would not otherwise be
required to so qualify, (ii) file any general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not
otherwise so subject.
(g)
Earning Statement.
The Company will make generally available to its security
holders and the Representatives as soon as practicable an earning statement that satisfies
the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering a period of at least twelve months beginning with the first
fiscal quarter of the Company occurring after the “effective date” (as defined in Rule 158)
of the Registration Statement.
(h)
Clear Market.
Prior to the Closing Date, neither the Company nor the Guarantor
will (i) offer, pledge, announce the intention to sell, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of, directly or indirectly,
any debt securities or any securities convertible into or exercisable or exchangeable for
debt securities or (ii) enter into any
swap or other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of its debt securities, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of debt securities or such other
securities, in cash or otherwise, without the prior written consent of each of the
Representatives on behalf of the Underwriters, other than the Securities.
(i)
Use of Proceeds.
The Company will apply the net proceeds from the sale of the
Securities as described in the Registration Statement, the Pricing Disclosure Package and
the Prospectus under the heading “Use of Proceeds”.
(j)
No Stabilization.
The Company and the Guarantor will not take, directly or
indirectly, any action designed to or that could reasonably be expected to cause or result
in any stabilization or manipulation of the price of the Securities and will not take any
action prohibited by Regulation M under the Exchange Act in connection with the distribution
of the Securities contemplated hereby.
-15-
(k)
Reports.
So long as the Securities are outstanding, the Company will furnish to
the Representatives, as soon as they are available, copies of all reports or other
communications (financial or other) furnished generally to holders of the Securities, and
copies of any reports and financial statements furnished to or filed with the Commission or
any national securities exchange or automatic quotation system;
provided
the Company
will be deemed to have furnished such reports and financial statements to the
Representatives to the extent they are filed on the Commission’s Electronic Data Gathering,
Analysis, and Retrieval system.
(l)
Record Retention
. The Company will, pursuant to reasonable procedures developed in
good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the
Commission in accordance with Rule 433 under the Securities Act.
5.
Certain Agreements of the Underwriters
. Each Underwriter hereby represents and
agrees that:
(a) It has not used, authorized use of, referred to or participated in the planning for
use of, and will not use, authorize use of, refer to or participate in the planning for use
of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and
not incorporated by reference into the Registration Statement and any press release issued
by the Company) required to be filed with the Commission other than (i) a free writing
prospectus that contains no “issuer information” (as defined in Rule 433(h)(2) under the
Securities Act) that was not included (including through incorporation by reference) in the
Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus, (ii) any Issuer
Free Writing Prospectus listed on Annex C or prepared pursuant to Section 3(c) or Section
4(c) above (including any electronic road show), or (iii) any free writing prospectus
prepared by such underwriter and approved by the Company in advance in writing (each such
free writing prospectus referred to in clauses (i) or (iii), an “Underwriter Free Writing
Prospectus”).
(b) It is not subject to any pending proceeding under Section 8A of the Securities Act
with respect to the offering (and will promptly notify the Company if any such proceeding
against it is initiated during the Prospectus Delivery Period).
6.
Conditions of Underwriters’ Obligations.
The obligation of each Underwriter to
purchase the Securities on the Closing Date as provided herein is subject to the performance by the
Company and the Guarantor of their respective covenants and other obligations hereunder and to the
following additional conditions:
(a)
Registration Compliance; No Stop Order.
No order suspending the effectiveness of
the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant
to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before
or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus
shall have been timely filed with the Commission under the Securities Act (in the case of an
Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act)
and in accordance with Section 4(a) hereof; and all requests by the Commission for
additional information shall have been complied with to the reasonable satisfaction of the
Representatives.
-16-
(b)
Representations and Warranties.
The representations and warranties of the Company
and the Guarantor contained herein shall be true and correct on and as of the date hereof,
the Applicable Time and the Closing Date, as the case may be; and the statements of the
Company and the Guarantor and their respective officers made in any certificates delivered
pursuant to this Agreement shall be true and correct on and as of the Closing Date.
(c)
No Downgrade.
Subsequent to the earlier of (A) the Applicable Time and (B) the
execution and delivery of this Agreement, no downgrading shall have occurred in the rating
accorded any debt securities or preferred stock of, or guaranteed by, the Company or any of
its subsidiaries (including the Guarantor) that are rated by a “nationally recognized
statistical rating organization,” as such term is defined by the Commission for purposes of
Rule 436(g)(2) under the Securities Act (“NRSRO”). In addition, subsequent to the earlier
of (A) the Applicable Time and (B) the execution and delivery of this Agreement, if any
NRSRO shall have downgraded the rating accorded any debt securities or preferred stock
issued or guaranteed by the Company or any of its subsidiaries (including the Guarantor),
such rating organization shall not have publicly announced that it has under surveillance or
review its rating of any such debt securities or preferred stock.
(d)
No Material Adverse Change.
No event or condition of a type described in Section
3(g) hereof shall have occurred or shall exist, which event or condition is not described in
the Pricing Disclosure Package (excluding any amendment or supplement thereto) and the
Prospectus (excluding any amendment or supplement thereto) and the effect of which in the
judgment of the Representatives makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Securities on the Closing Date on the terms and in the
manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus.
(e)
Officer’s Certificate.
The Representatives shall have received on and as of the
Closing Date a certificate of the chief financial officer or chief accounting officer of
each of the Company and the Guarantor and one additional senior executive officer of each of
the Company and the Guarantor who is reasonably satisfactory to the Representatives (i)
confirming that such officers have reviewed the Registration Statement, the Pricing
Disclosure Package and the Prospectus and, to the knowledge of such officers, the
representations set forth in Sections 3(b) and 3(d) hereof are true and correct, (ii)
confirming that the other representations and warranties of the Company and the Guarantor in
this Agreement are true and correct and that the Company and the Guarantor have complied
with all agreements and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date and (iii) to the effect set forth in paragraphs
(a), (c) and (d) above.
(f)
Comfort Letters.
On the date of this Agreement and on the Closing Date,
PricewaterhouseCoopers LLP shall have furnished to the Representatives, at the request of
the Company, letters, dated the date of delivery thereof and addressed to the Underwriters,
in form and substance reasonably satisfactory to the Representatives, containing statements
and information of the type customarily included in accountants’ “comfort letters” to
underwriters with respect to the financial statements and certain financial information
contained or
incorporated by reference in the Registration Statement, the Pricing Disclosure Package
and the Prospectus; provided, that the letter delivered on the Closing Date shall use a
“cut-off” date no more than three business days prior to such Closing Date.
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(g)
Opinions and 10b-5 Statement of Counsel for the Company.
Holme Roberts & Owen LLP,
counsel for the Company and the Guarantor, shall have furnished to the Representatives, at
the request of the Company, their written opinion and 10b-5 statement, dated the Closing
Date and addressed to the Underwriters, substantially in the form and to the effect set
forth in Annex A. Jeffrey K. Reeser, Vice President and Secretary of the Company, shall
have furnished to the Representatives, at the request of the Company his written opinion,
dated the Closing Date and addressed to the Underwriters, substantially in the form and to
the effect set forth in Annex B.
(h)
Opinion and 10b-5 Statement of Counsel for the Underwriters.
The Representatives
shall have received on and as of the Closing Date an opinion and 10b-5 statement of Sullivan
& Cromwell LLP, counsel for the Underwriters, with respect to such matters as the
Representatives may reasonably request, and such counsel shall have received such documents
and information as they may reasonably request to enable them to pass upon such matters.
(i)
No Legal Impediment to Issuance.
No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted or issued by any federal, state
or foreign governmental or regulatory authority that would, as of the Closing Date, prevent
the issuance or sale of the Securities; and no injunction or order of any federal, state or
foreign court shall have been issued that would, as of the Closing Date, prevent the
issuance or sale of the Securities.
(j)
Good Standing
. The Representatives shall have received on and as of the Closing
Date, satisfactory evidence of the good standing of the Company and the Guarantor in their
respective jurisdictions of organization and their good standing as a foreign entity in the
State of Colorado and the State of Nevada (as to the Guarantor only), in each case in
writing or any standard form of telecommunication from the appropriate governmental
authorities of such jurisdictions.
(k)
Additional Documents.
On or prior to the Closing Date, the Company and the
Guarantor shall have furnished to the Representatives such further certificates and
documents as the Representatives may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
7.
Indemnification and Contribution
.
(a)
Indemnification of the Underwriters.
The Company and the Guarantor, jointly and
severally, agree to indemnify and hold harmless each Underwriter, its affiliates, directors and
officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, reasonable legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and
expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement or
caused by any omission or alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein, not misleading, or (ii) any untrue
-18-
statement
or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Prospectus (or any amendment or supplement thereto), any Issuer
Free Writing Prospectus, any “issuer information” relating to this offering filed or required to be
filed pursuant to Rule 433(d) under the Securities Act or any Pricing Disclosure Package (including
any Pricing Disclosure Package that has subsequently been amended), or caused by any omission or
alleged omission to state therein a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading, in each case
except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of the information
described as such in subsection (b) below.
(b)
Indemnification of the Company and the Guarantor.
Each Underwriter agrees, severally and
not jointly, to indemnify and hold harmless the Company and the Guarantor, their respective
directors, officers who signed the Registration Statement, and each person, if any, who controls
the Company or the Guarantor within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only
with respect to any losses, claims, damages or liabilities (including, without limitation,
reasonable legal fees and other expenses incurred in connection with any suit, action or proceeding
or any claim asserted, as such fees and expenses are incurred) that arise out of, or are based
upon, any untrue statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for use in the Registration
Statement, any Preliminary Prospectus, the Prospectus (or any amendment or supplement thereto), any
Issuer Free Writing Prospectus or any Pricing Disclosure Package, it being understood and agreed
upon that the only such information furnished by any Underwriter consists of the following
information in the Prospectus furnished on behalf of each Underwriter: the concession figure
appearing in the second paragraph under the caption “Underwriting” and the information contained in
the fifth paragraph and the second sentence of the sixth paragraph under the caption
“Underwriting”.
(c)
Notice and Procedures.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such
person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing;
provided
that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
under paragraph (a) or (b) above except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided
,
further
, that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b)
above. If any such proceeding shall be brought or asserted against an Indemnified Person and it
shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the
Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person in
such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have
reasonably concluded that there may be legal defenses available to it that are different from or in
addition to those available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would be inappropriate
due to actual or
-19-
potential differing interest between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be paid
or reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates,
directors and officers and any control persons of such Underwriter shall be designated in writing
by the Representatives and any such separate firm for the Company and the Guarantor, their
respective directors, officers who signed the Registration Statement and any control persons of the
Company or the Guarantor shall be designated in writing by the Company. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its written consent,
which consent shall not be unreasonably withheld, but if settled with such consent or if there be a
final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is entered into more than 30
days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such request prior to the date
of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified
Person (which consent shall not be unreasonably withheld), effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could have been a party and
indemnification could have been sought hereunder by such Indemnified Person, unless such settlement
(x) includes an unconditional release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are the subject matter
of such proceeding and (y) does not include any statement as to or any admission of fault,
culpability or a failure to act by or on behalf of any Indemnified Person.
(d)
Contribution.
If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company and the
Guarantor, on the one hand, and the Underwriters on the other, from the offering of the Securities
or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i)
but also the relative fault of the Company and the Guarantor, on the one hand, and the Underwriters
on the other, in connection with the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Guarantor, on the one hand, and the Underwriters on the
other, shall be deemed to be in the same respective proportions as the net proceeds (before
deducting expenses) received by the Company from the sale of the Securities and the total
underwriting discounts and commissions received by the Underwriters in connection therewith, in
each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering
price of the Securities. The relative fault of the Company and the Guarantor, on the one hand, and
the Underwriters on the other, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Guarantor or by the
Underwriters, respectively, and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
-20-
(e)
Limitation on Liability.
The Company, the Guarantor and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were determined by
pro
rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d)
above shall be deemed to include, subject to the limitations set forth above, any reasonable legal
or other expenses incurred by such Indemnified Person in connection with any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an Underwriter be required to
contribute any amount in excess of the amount by which the total underwriting discounts and
commissions received by such Underwriter with respect to the offering of the Securities exceeds the
amount of any damages that such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute pursuant to this Section 7 are several in proportion to
their respective purchase obligations hereunder and not joint.
(f)
Non-Exclusive Remedies.
The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
8.
Effectiveness of Agreement
. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
9.
Termination
. This Agreement may be terminated in the absolute discretion of the
Representatives, by notice to the Company, if after the execution and delivery of this Agreement
and prior to the Closing Date (i) trading generally shall have been suspended or materially limited
on or by any of the Exchange or the Nasdaq Stock Market; (ii) trading of any securities issued or
guaranteed by the Company or the Guarantor shall have been suspended on any exchange or in any
over-the-counter market; (iii) a general moratorium on commercial banking activities shall have
been declared by federal or New York State authorities or a material disruption in clearance or
settlement systems shall have occurred; or (iv) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any calamity or crisis, either
within or outside the United States, that, in the judgment of the Representatives, is material and
adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of
the Securities on the Closing Date on the terms and in the manner contemplated by this Agreement,
the Pricing Disclosure Package and the Prospectus.
10.
Defaulting Underwriter
.
(a) If, on the Closing Date, any Underwriter defaults on its obligation to purchase the
Securities that it has agreed to purchase hereunder on such date, the Representatives may in their
discretion arrange for the purchase of such Securities by themselves, the non-defaulting
Underwriters or by other persons reasonably satisfactory to the Company on the terms contained in
this Agreement. If, within 36 hours after any such default by any Underwriter, the Representatives
do not arrange for the purchase of such Securities, then the Company shall be entitled to a further
period of 36 hours within which to procure other persons satisfactory to the Representatives to
purchase such Securities on such terms. If, within the respective prescribed period, the
Representatives shall have arranged for the purchase of such Securities, or the Company shall have
arranged for the purchase of such Securities, either the Representatives or the Company may
postpone the Closing Date for up to five full business days in order to effect any changes that in
the opinion of the Company or the Representatives may be
necessary in the Registration Statement and the Prospectus or in any other document or
arrangement relating to such purpose, and the Company agrees to promptly prepare any amendment or
supplement to the Registration Statement and the Prospectus that effects any such changes. As used
in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the
context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this
Section 10, purchases Securities that a defaulting Underwriter agreed but failed to purchase.
-21-
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters, the Representatives and
the Company as provided in paragraph (a) above, the aggregate principal amount of such Securities
that remain unpurchased does not exceed one-eleventh of the aggregate principal amount of
Securities, then the Company shall have the right to require each non-defaulting Underwriter to
purchase the aggregate principal amount of Securities that such Underwriter agreed to purchase
hereunder on such date plus such Underwriter’s pro rata share (based on the aggregate principal
amount of such Securities that such Underwriter agreed to purchase on such date) of such Securities
of such defaulting Underwriter or Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of Securities that remain
unpurchased on the Closing Date exceeds one-eleventh of the aggregate principal amount of
Securities to be purchased on such date, or if the Company shall not exercise the right described
in paragraph (b) above, then this Agreement shall terminate without liability on the part of the
non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 10 shall
be without liability on the part of the Company and the Guarantor, except that the Company will
continue to be liable for the payment of expenses as set forth in Section 11 hereof and except that
the provisions of Section 7 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company, the Guarantor or any non-defaulting Underwriter for damages caused by its
default.
11.
Payment of Expenses
.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company and the Guarantor, jointly and severally, will pay or cause to
be paid all costs and expenses incident to the performance of its obligations hereunder, including
without limitation, (i) the costs incident to the authorization, sale, execution, issue,
authentication, packaging and initial delivery of the Securities and any taxes payable by it in
that connection; (ii) the costs incident to the preparation, printing and filing under the
Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free Writing
Prospectus, any Pricing Disclosure Package and the Prospectus (including all exhibits, amendments
and supplements thereto) and the distribution thereof; (iii) the costs of reproducing and
distributing each of the Underwriting Agreement; (iv) the fees and expenses of the Company’s and
the Guarantor’s counsel and independent accountants; (v) the fees and expenses incurred in
connection with the registration or qualification of the Securities under the state or foreign
securities or blue sky laws of such jurisdictions as the Representatives may designate and the
preparation, printing and distribution of Blue Sky memoranda related thereto (including the
related fees and expenses of counsel for the Underwriters); (vi) any fees charged by rating
agencies for rating the Securities; (vii) the fees and expenses of the Trustee and any paying agent
(including related fees and expenses of any counsel to such parties); (viii) all expenses and
application fees incurred in connection with any filing with, and clearance of the offering by,
FINRA and the approval of the Securities for book-entry transfer by DTC; and (ix) all expenses
incurred by the Company and the Guarantor in connection with any “road show” presentation to
potential investors; provided, however, that except as provided in this Section 11, the
Underwriters shall pay their own costs and expenses, including without limitation the fees and
disbursements of their counsel
and any advertising expenses (other than with respect to any road show presentation) connected
with any offers they make.
-22-
(b) If the purchase of the Securities by the Underwriters is not consummated for any reason
permitted under this Agreement other than because of the termination of this Agreement pursuant to
clauses (i), (iii) and (iv) of Section 9 hereof, the occurrence of any event specified in Section
10 hereof or the occurrence of any event specified in paragraph (h) of Section 6 hereof, the
Company and the Guarantor, jointly and severally, agree to reimburse the Underwriters for all
out-of-pocket costs and expenses (including the fees and expenses of their counsel) reasonably
incurred by the Underwriters in connection with this Agreement and the offering contemplated
hereby, but the Company and the Guarantor shall be under no further liability to any Underwriter
except as provided in Section 7 hereof.
12.
Persons Entitled to Benefit of Agreement
. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to in Section 7 hereof. Nothing in this
Agreement is intended or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained herein. No
purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of
such purchase.
13.
Survival
. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company, the Guarantor and the Underwriters contained in this
Agreement or made by or on behalf of the Company, the Guarantor or the Underwriters pursuant to
this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and
payment for the Securities and shall remain in full force and effect, regardless of any termination
of this Agreement or any investigation made by or on behalf of the Company, the Guarantor or the
Underwriters.
14.
Certain Defined Terms
. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in
Rule 405 under the Securities Act.
-23-
15.
Miscellaneous
.
(a)
Authority of the Representatives.
Any action by the Underwriters hereunder may be taken
by the Representatives on behalf of the Underwriters, and any such action taken by the
Representatives shall be binding upon the Underwriters.
(b)
Notices.
All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representatives c/o Deutsche
Bank Securities Inc., 60 Wall Street, New York, New York 10005 (fax: (212) 797-2202); and UBS
Securities LLC, 677 Washington Blvd., Stamford, CT 06901 (fax: (203) 719-0495), Attention: Fixed
Income Syndicate. Notices to the Company shall be given to it at 6363 South Fiddlers Green Circle,
Greenwood Village, Colorado 80111 (fax:(303) 837-5810); Attention: Treasurer.
(c)
Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed in such state.
(d)
Counterparts.
This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e)
Amendments or Waivers.
No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f)
Headings.
The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
-24-
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
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Very truly yours,
NEWMONT MINING CORPORATION
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By:
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/s/ Russell D. Ball
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Name:
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Russell D. Ball
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Title:
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Executive Vice President and
Chief Financial Officer
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NEWMONT USA LIMITED
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By:
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/s/ Jeffrey K. Reeser
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Name:
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Jeffrey K. Reeser
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Title:
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Vice President and Secretary
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Accepted: September 15, 2009
UBS SECURITIES LLC
For itself and on behalf of the several Underwriters listed in Schedule 1 hereto.
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By:
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/s/ John Doherty
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Authorized Signatory
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By:
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/s/ Christopher Fernando
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Authorized Signatory
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Accepted: September 15, 2009
DEUTSCHE BANK SECURITIES INC.
For itself and on behalf of the several Underwriters listed in Schedule 1 hereto.
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By:
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/s/ Ben-Zion Smilchensky
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Authorized Signatory
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By:
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/s/ Jared Birnbaum
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Authorized Signatory
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-25-
Schedule 1
5.125% Senior Notes due 2019
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Underwriter
|
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Principal Amount
|
|
|
|
|
|
|
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UBS Securities LLC
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$
|
184,500,000
|
|
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Deutsche Bank Securities Inc.
|
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$
|
184,500,000
|
|
|
J.P. Morgan Securities Inc.
|
|
$
|
46,980,000
|
|
|
RBS Securities Inc.
|
|
$
|
46,980,000
|
|
|
Scotia Capital (USA) Inc.
|
|
$
|
46,980,000
|
|
|
Citigroup Global Markets Inc.
|
|
$
|
46,980,000
|
|
|
HSBC Securities (USA) Inc.
|
|
$
|
46,980,000
|
|
|
Daiwa Securities America Inc.
|
|
$
|
46,980,000
|
|
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BMO Capital Markets Corp.
|
|
$
|
25,200,000
|
|
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ANZ Securities, Inc.
|
|
$
|
25,200,000
|
|
|
Mitsubishi UFJ Securities (USA), Inc.
|
|
$
|
25,200,000
|
|
|
BBVA Securities Inc.
|
|
$
|
25,200,000
|
|
|
BNP Paribas Securities Corp.
|
|
$
|
25,200,000
|
|
|
CIBC World Markets Corp.
|
|
$
|
25,200,000
|
|
|
Mizuho Securities USA Inc.
|
|
$
|
25,200,000
|
|
|
RBC Capital Markets Corporation
|
|
$
|
25,200,000
|
|
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BNY Mellon Capital Markets, LLC
|
|
$
|
15,840,000
|
|
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U.S. Bancorp Investments, Inc.
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$
|
15,840,000
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|
|
SG Americas Securities, LLC
|
|
$
|
15,840,000
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|
|
|
|
|
|
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|
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Total
|
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$
|
900,000,000
|
|
|
|
|
|
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6.250% Senior Notes due 2039
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|
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|
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Underwriter
|
|
Principal Amount
|
|
|
|
|
|
|
|
UBS Securities LLC
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$
|
225,500,000
|
|
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Deutsche Bank Securities Inc.
|
|
$
|
225,500,000
|
|
|
J.P. Morgan Securities Inc.
|
|
$
|
57,420,000
|
|
|
RBS Securities Inc.
|
|
$
|
57,420,000
|
|
|
Scotia Capital (USA) Inc.
|
|
$
|
57,420,000
|
|
|
Citigroup Global Markets Inc.
|
|
$
|
57,420,000
|
|
|
HSBC Securities (USA) Inc.
|
|
$
|
57,420,000
|
|
|
Daiwa Securities America Inc.
|
|
$
|
57,420,000
|
|
|
BMO Capital Markets Corp.
|
|
$
|
30,800,000
|
|
|
ANZ Securities, Inc.
|
|
$
|
30,800,000
|
|
|
Mitsubishi UFJ Securities (USA), Inc.
|
|
$
|
30,800,000
|
|
|
BBVA Securities Inc.
|
|
$
|
30,800,000
|
|
|
BNP Paribas Securities Corp.
|
|
$
|
30,800,000
|
|
|
CIBC World Markets Corp.
|
|
$
|
30,800,000
|
|
|
Mizuho Securities USA Inc.
|
|
$
|
30,800,000
|
|
|
RBC Capital Markets Corporation
|
|
$
|
30,800,000
|
|
|
BNY Mellon Capital Markets, LLC
|
|
$
|
19,360,000
|
|
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U.S. Bancorp Investments, Inc.
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|
$
|
19,360,000
|
|
|
SG Americas Securities, LLC
|
|
$
|
19,360,000
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
1,100,000,000
|
|
|
|
|
|
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-26-
Schedule 2
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1.
|
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An increase in short term debt outstanding to approximately $340 million.
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-27-
Schedule 3
Newmont USA Limited, a Delaware corporation
Newmont Mining Corporation of Canada Limited, a Canadian federal corporation
P.T. Newmont Nusa Tengarra, an Indonesian limited liability company
Newmont Australia Limited, an Australian limited liability company
Minera Yanacocha S.R.L, a Peruvian limited liability company
-28-
Annex A
Form of Opinion of Holme Roberts & Owen
-29-
Annex B
[Form of Opinion of Jeffrey K. Reeser, Vice President and Secretary of the Company]
-30-
Annex C
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a.
|
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Pricing Disclosure Package
|
-31-
Annex D
Newmont Mining Corporation
Final Term Sheet
September 15, 2009
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Issuer:
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Newmont Mining Corporation
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Guarantor:
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Newmont USA Limited
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Size:
|
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$900,000,000
|
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Maturity:
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October 1, 2019
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Coupon (Interest Rate):
|
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5.125% per annum from April 1, 2010
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Yield to Maturity:
|
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5.189%
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Spread to Benchmark Treasury:
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+175 basis points
|
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Benchmark Treasury:
|
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3.625% due August 15, 2019
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Benchmark Treasury Price and Yield:
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101-17+ and 3.439%
|
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Interest Payment Dates:
|
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October 1 and April 1, beginning April 1, 2010
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|
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Redemption Provision:
|
|
Make-Whole Call: US Treasury + 30 basis points
|
|
|
|
|
|
Price to Public:
|
|
99.502%
|
|
|
|
|
|
Settlement Date:
|
|
September 18, 2009
|
|
|
|
|
|
Anticipated Ratings:
|
|
Baa2/BBB+
|
|
|
|
|
|
CUSIP:
|
|
651639AL0
|
|
|
|
|
|
ISIN:
|
|
US651639AL04
|
|
|
|
|
|
Joint Book-Running Managers:
|
|
Deutsche Bank Securities Inc.
|
|
|
|
UBS Securities LLC
|
|
|
|
|
|
Senior Co-Managers:
|
|
J.P. Morgan Securities Inc.
|
|
|
|
RBS Securities Inc
|
|
|
|
Scotia Capital (USA) Inc.
|
|
|
|
Citigroup Global Markets Inc.
|
|
|
|
HSBC Securities (USA) Inc.
|
|
|
|
Daiwa Securities America Inc.
|
|
|
|
|
|
Co-Managers:
|
|
BMO Capital Markets Corp.
|
|
|
|
ANZ Securities, Inc.
|
|
|
|
Mitsubishi UFJ Securities (USA), Inc.
|
|
|
|
BBVA Securities, Inc.
|
|
|
|
BNP Paribas Securities Corp.
|
|
|
|
CIBC World Markets Corp.
|
|
|
|
Mizuho Securities USA Inc.
|
|
|
|
RBC Capital Markets Corporation
|
|
|
|
BNY Capital Markets, Inc.
|
|
|
|
U.S. Bancorp Investments, Inc.
|
|
|
|
SG Americas Securities, LLC
|
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
EDGAR on the SEC Web site at www.sec.gov. Alternatively, Deutsche Bank Securities Inc. and UBS
Securities LLC can arrange to send you the prospectus if you request it by calling Deutsche Bank
Securities Inc. at 1-800-503-4611 or calling UBS Securities LLC at 1-877-827-6444, Ext. 561-3884.
-32-
Newmont Mining Corporation
Final Term Sheet
September 15, 2009
|
|
|
|
|
Issuer:
|
|
Newmont Mining Corporation
|
|
|
|
|
|
Guarantor:
|
|
Newmont USA Limited
|
|
|
|
|
|
Size:
|
|
$1,100,000,000
|
|
|
|
|
|
Maturity:
|
|
October 1, 2039
|
|
|
|
|
|
Coupon (Interest Rate):
|
|
6.250% per annum from April 1, 2010
|
|
|
|
|
|
Yield to Maturity:
|
|
6.339%
|
|
|
|
|
|
Spread to Benchmark Treasury:
|
|
+210 basis points
|
|
|
|
|
|
Benchmark Treasury:
|
|
4.250% due May 15, 2039
|
|
|
|
|
|
Benchmark Treasury Price and Yield:
|
|
100-05+ and 4.239%
|
|
|
|
|
|
Interest Payment Dates:
|
|
October 1 and April 1, beginning April 1, 2010
|
|
|
|
|
|
Redemption Provision:
|
|
Make-Whole Call: US Treasury + 35 basis points
|
|
|
|
|
|
Price to Public:
|
|
98.808%
|
|
|
|
|
|
Settlement Date:
|
|
September 18, 2009
|
|
|
|
|
|
Anticipated Ratings:
|
|
Baa2/ BBB+
|
|
|
|
|
|
CUSIP:
|
|
651639 AM8
|
|
|
|
|
|
ISIN:
|
|
US651639AM86
|
|
|
|
|
|
Joint Book-Running Managers:
|
|
Deutsche Bank Securities Inc.
|
|
|
|
UBS Securities LLC
|
|
|
|
|
|
Senior Co-Managers:
|
|
J.P. Morgan Securities Inc.
|
|
|
|
RBS Securities Inc
|
|
|
|
Scotia Capital (USA) Inc.
|
|
|
|
Citigroup Global Markets Inc.
|
|
|
|
HSBC Securities (USA) Inc.
|
|
|
|
Daiwa Securities America Inc.
|
|
|
|
|
|
Co-Managers:
|
|
BMO Capital Markets Corp.
|
|
|
|
ANZ Securities, Inc.
|
|
|
|
Mitsubishi UFJ Securities (USA), Inc.
|
|
|
|
BBVA Securities, Inc.
|
|
|
|
BNP Paribas Securities Corp.
|
|
|
|
CIBC World Markets Corp.
|
|
|
|
Mizuho Securities USA Inc.
|
|
|
|
RBC Capital Markets Corporation
|
|
|
|
BNY Capital Markets, Inc.
|
|
|
|
U.S. Bancorp Investments, Inc.
|
|
|
|
SG Americas Securities, LLC
|
Note: A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time.
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
EDGAR on the SEC Web site at www.sec.gov. Alternatively, Deutsche Bank Securities Inc. and UBS
Securities LLC can arrange to send you the prospectus if you request it by calling Deutsche Bank
Securities Inc. at 1-800-503-4611 or calling UBS Securities LLC at 1-877-827-6444, Ext. 561-3884.
-33-
Exhibit 4.1
NEWMONT MINING CORPORATION
AND
NEWMONT USA LIMITED
(As the Subsidiary Guarantor)
TO
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
Trustee
Indenture
Dated
as of September 18, 2009
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
Page
|
|
Parties
|
|
|
1
|
|
|
|
|
|
|
|
|
Recitals of the Company
|
|
|
1
|
|
|
|
|
|
|
|
ARTICLE ONE
|
|
|
|
|
|
|
DEFINITIONS AND OTHER PROVISIONS
|
OF GENERAL APPLICATION
|
|
|
|
|
|
|
|
SECTION 101. Definitions
|
|
|
1
|
|
|
Act
|
|
|
2
|
|
|
Affiliate
|
|
|
2
|
|
|
Authenticating Agent
|
|
|
2
|
|
|
Bankruptcy Law
|
|
|
2
|
|
|
Board of Directors
|
|
|
3
|
|
|
Board Resolution
|
|
|
3
|
|
|
Business Day
|
|
|
3
|
|
|
Commission
|
|
|
3
|
|
|
Company
|
|
|
3
|
|
|
Company Request; Company Order
|
|
|
3
|
|
|
Corporate Trust Office
|
|
|
3
|
|
|
corporation
|
|
|
3
|
|
|
Covenant Defeasance
|
|
|
4
|
|
|
Custodian
|
|
|
4
|
|
|
Defaulted Interest
|
|
|
4
|
|
|
Defeasance
|
|
|
4
|
|
|
Depositary
|
|
|
4
|
|
|
Event of Default
|
|
|
4
|
|
|
Exchange Act
|
|
|
4
|
|
|
Expiration Date
|
|
|
4
|
|
|
Global Security
|
|
|
4
|
|
|
Holder
|
|
|
4
|
|
|
Indenture
|
|
|
4
|
|
|
interest
|
|
|
4
|
|
|
Interest Payment Date
|
|
|
4
|
|
|
Investment Company Act
|
|
|
4
|
|
|
Material Indebtedness
|
|
|
5
|
|
|
Maturity
|
|
|
5
|
|
|
Notice of Default
|
|
|
5
|
|
|
Officer
|
|
|
5
|
|
|
Officers’ Certificate
|
|
|
5
|
|
|
Opinion of Counsel
|
|
|
5
|
|
|
Original Issue Discount Security
|
|
|
5
|
|
|
Outstanding
|
|
|
5
|
|
|
Paying Agent
|
|
|
6
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
Person
|
|
|
6
|
|
|
Place of Payment
|
|
|
6
|
|
|
Predecessor Security
|
|
|
6
|
|
|
Redemption Date
|
|
|
7
|
|
|
Redemption Price
|
|
|
7
|
|
|
Regular Record Date
|
|
|
7
|
|
|
Securities
|
|
|
7
|
|
|
Securities Act
|
|
|
7
|
|
|
Security Register; Security Registrar
|
|
|
7
|
|
|
Special Record Date
|
|
|
7
|
|
|
Stated Maturity
|
|
|
7
|
|
|
Subsidiary
|
|
|
8
|
|
|
Subsidiary Guarantor
|
|
|
8
|
|
|
Trust Indenture Act
|
|
|
8
|
|
|
Trustee
|
|
|
8
|
|
|
Trust Officer
|
|
|
8
|
|
|
U.S. Government Obligation
|
|
|
8
|
|
|
Vice President
|
|
|
8
|
|
|
SECTION 102. Compliance Certificates and Opinions
|
|
|
8
|
|
|
SECTION 103. Form of Documents Delivered to Trustee
|
|
|
9
|
|
|
SECTION 104. Acts of Holders; Record Dates
|
|
|
10
|
|
|
SECTION 105. Notices, Etc., to Trustee and Company
|
|
|
12
|
|
|
SECTION 106. Notice to Holders; Waiver
|
|
|
12
|
|
|
SECTION 107. Conflict with Trust Indenture Act
|
|
|
13
|
|
|
SECTION 108. Effect of Headings and Table of Contents
|
|
|
13
|
|
|
SECTION 109. Successors and Assigns
|
|
|
14
|
|
|
SECTION 110. Separability Clause
|
|
|
14
|
|
|
SECTION 111. Benefits of Indenture
|
|
|
14
|
|
|
SECTION 112. Governing Law
|
|
|
14
|
|
|
SECTION 113. Legal Holidays
|
|
|
14
|
|
|
SECTION 114. No Recourse Against Others
|
|
|
14
|
|
|
SECTION 115. Withholding; Offset
|
|
|
14
|
|
|
SECTION 116. Holder Documentation
|
|
|
15
|
|
|
SECTION 117. Force Majeure
|
|
|
15
|
|
|
SECTION 118. Waiver of Jury Trial
|
|
|
15
|
|
|
|
|
|
|
|
ARTICLE TWO
|
|
|
|
|
|
|
SECURITY FORMS
|
|
SECTION 201. Forms Generally
|
|
|
15
|
|
|
SECTION 202. Form of Face of Security
|
|
|
16
|
|
|
SECTION 203. Form of Reverse of Security
|
|
|
17
|
|
|
SECTION 204. Form of Legend for Global Securities
|
|
|
21
|
|
|
SECTION 205. Form of Trustee’s Certificate of Authentication
|
|
|
22
|
|
|
|
|
|
|
|
ii
|
|
|
|
|
|
|
|
|
Page
|
ARTICLE THREE
|
|
|
|
|
|
|
THE SECURITIES
|
|
|
|
SECTION 301. Amount Unlimited; Issuable in Series
|
|
|
22
|
|
|
SECTION 302. Denominations
|
|
|
24
|
|
|
SECTION 303. Execution, Authentication, Delivery and Dating
|
|
|
25
|
|
|
SECTION 304. Temporary Securities
|
|
|
26
|
|
|
SECTION 305. Registration, Registration of Transfer and Exchange
|
|
|
27
|
|
|
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities
|
|
|
29
|
|
|
SECTION 307. Payment of Interest; Interest Rights Preserved
|
|
|
29
|
|
|
SECTION 308. Persons Deemed Owners
|
|
|
30
|
|
|
SECTION 309. Cancellation
|
|
|
31
|
|
|
SECTION 310. Computation of Interest
|
|
|
31
|
|
|
SECTION 311. CUSIP and ISIN Numbers
|
|
|
31
|
|
|
|
|
|
|
|
ARTICLE FOUR
|
|
|
|
|
|
|
SATISFACTION AND DISCHARGE
|
|
|
|
|
|
|
|
SECTION 401. Satisfaction and Discharge of Indenture
|
|
|
31
|
|
|
SECTION 402. Application of Trust Money
|
|
|
32
|
|
ARTICLE FIVE
|
|
|
REMEDIES
|
|
SECTION 501. Events of Default
|
|
|
33
|
|
|
SECTION 502. Acceleration of Maturity; Rescission and Annulment
|
|
|
34
|
|
|
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
35
|
|
|
SECTION 504. Trustee May File Proofs of Claim
|
|
|
36
|
|
|
SECTION 505. Trustee May Enforce Claims Without Possession of Securities
|
|
|
36
|
|
|
SECTION 506. Application of Money Collected
|
|
|
36
|
|
|
SECTION 507. Limitation on Suits
|
|
|
37
|
|
|
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest
|
|
|
37
|
|
|
SECTION 509. Restoration of Rights and Remedies
|
|
|
37
|
|
|
SECTION 510. Rights and Remedies Cumulative
|
|
|
38
|
|
|
SECTION 511. Delay or Omission Not Waiver
|
|
|
38
|
|
|
SECTION 512. Control by Holders
|
|
|
38
|
|
|
SECTION 513. Waiver of Past Defaults
|
|
|
38
|
|
|
SECTION 514. Undertaking for Costs
|
|
|
39
|
|
|
SECTION 515. Waiver of Usury, Stay or Extension Laws
|
|
|
39
|
|
|
|
|
|
|
|
ARTICLE SIX
|
|
|
|
|
|
|
THE TRUSTEE
|
|
|
|
|
|
|
|
SECTION 601. Certain Duties and Responsibilities
|
|
|
39
|
|
|
SECTION 602. Notice of Defaults
|
|
|
40
|
|
|
SECTION 603. Certain Rights of Trustee
|
|
|
41
|
|
|
SECTION 604. Not Responsible for Recitals or Issuance of Securities
|
|
|
42
|
|
|
SECTION 605. May Hold Securities
|
|
|
42
|
|
|
SECTION 606. Money Held in Trust
|
|
|
42
|
|
|
SECTION 607. Compensation and Reimbursement
|
|
|
43
|
|
iii
|
|
|
|
|
|
|
|
|
Page
|
|
SECTION 608. Conflicting Interests
|
|
|
43
|
|
|
SECTION 609. Corporate Trustee Required; Eligibility
|
|
|
44
|
|
|
SECTION 610. Resignation and Removal; Appointment of Successor
|
|
|
44
|
|
|
SECTION 611. Acceptance of Appointment by Successor
|
|
|
45
|
|
|
SECTION 612. Merger, Conversion, Consolidation or Succession to Business
|
|
|
46
|
|
|
SECTION 613. Preferential Collection of Claims Against Company
|
|
|
47
|
|
|
SECTION 614. Appointment of Authenticating Agent
|
|
|
47
|
|
|
SECTION 615. Trustee’s Application for Instructions from the Company
|
|
|
49
|
|
|
|
|
|
|
|
ARTICLE SEVEN
|
|
|
|
|
|
|
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
|
|
|
|
|
|
|
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders
|
|
|
49
|
|
|
SECTION 702. Preservation of Information; Communications to Holders
|
|
|
49
|
|
|
SECTION 703. Reports by Trustee
|
|
|
50
|
|
|
SECTION 704. Reports by Company
|
|
|
50
|
|
|
|
|
|
|
|
ARTICLE EIGHT
|
|
|
|
|
|
|
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
|
|
|
|
|
|
|
|
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms
|
|
|
50
|
|
|
SECTION 802. Successor Substituted
|
|
|
51
|
|
|
|
|
|
|
|
ARTICLE NINE
|
|
|
|
|
|
|
SUPPLEMENTAL INDENTURES
|
|
|
|
|
|
|
|
SECTION 901. Supplemental Indentures Without Consent of Holders
|
|
|
52
|
|
|
SECTION 902. Supplemental Indentures With Consent of Holders
|
|
|
53
|
|
|
SECTION 903. Execution of Supplemental Indentures
|
|
|
54
|
|
|
SECTION 904. Effect of Supplemental Indentures
|
|
|
54
|
|
|
SECTION 905. Conformity with Trust Indenture Act
|
|
|
54
|
|
|
SECTION 906. Reference in Securities to Supplemental Indentures
|
|
|
54
|
|
|
|
|
|
|
|
ARTICLE TEN
|
|
|
|
|
|
|
COVENANTS
|
|
|
|
|
|
|
|
SECTION 1001. Payment of Principal, Premium and Interest
|
|
|
55
|
|
|
SECTION 1002. Maintenance of Office or Agency
|
|
|
55
|
|
|
SECTION 1003. Money for Securities Payments to Be Held in Trust
|
|
|
55
|
|
|
SECTION 1004. Statement by Officers as to Default
|
|
|
56
|
|
|
SECTION 1005. Existence
|
|
|
57
|
|
|
SECTION 1006. Calculation of Original Issue Discount
|
|
|
57
|
|
|
SECTION 1007. Maintenance of Properties
|
|
|
57
|
|
|
SECTION 1008. Payment of Taxes and Other Claims
|
|
|
57
|
|
|
SECTION 1009. Limitation on Liens
|
|
|
57
|
|
|
SECTION 1010. Limitation on Sales and Leasebacks
|
|
|
59
|
|
|
SECTION 1011. Waiver of Certain Covenants
|
|
|
60
|
|
iv
|
|
|
|
|
|
|
|
|
Page
|
ARTICLE ELEVEN
|
|
|
|
|
|
|
REDEMPTION OF SECURITIES
|
|
|
|
SECTION 1101. Applicability of Article
|
|
|
61
|
|
|
SECTION 1102. Election to Redeem; Notice to Trustee
|
|
|
61
|
|
|
SECTION 1103. Selection by Trustee of Securities to Be Redeemed
|
|
|
61
|
|
|
SECTION 1104. Notice of Redemption
|
|
|
62
|
|
|
SECTION 1105. Deposit of Redemption Price
|
|
|
62
|
|
|
SECTION 1106. Securities Payable on Redemption Date
|
|
|
63
|
|
|
SECTION 1107. Securities Redeemed in Part
|
|
|
63
|
|
|
|
|
|
|
|
ARTICLE TWELVE
|
|
|
|
|
|
|
SINKING FUNDS
|
|
|
|
|
|
|
|
SECTION 1201. Applicability of Article
|
|
|
63
|
|
|
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities
|
|
|
64
|
|
|
SECTION 1203. Redemption of Securities for Sinking Fund
|
|
|
64
|
|
|
|
|
|
|
|
ARTICLE THIRTEEN
|
|
|
|
|
|
|
DEFEASANCE AND COVENANT DEFEASANCE
|
|
|
|
|
|
|
|
SECTION 1301. Company’s Option to Effect Defeasance or Covenant
Defeasance
|
|
|
64
|
|
|
SECTION 1302. Defeasance and Discharge
|
|
|
64
|
|
|
SECTION 1303. Covenant Defeasance
|
|
|
65
|
|
|
SECTION 1304. Conditions to Defeasance or Covenant Defeasance
|
|
|
65
|
|
|
SECTION 1305. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions
|
|
|
67
|
|
|
SECTION 1306. Reinstatement
|
|
|
68
|
|
|
|
|
|
|
|
ARTICLE FOURTEEN
|
|
|
|
|
|
|
SUBSIDIARY GUARANTEE
|
|
|
|
|
|
|
|
SECTION 1401. Subsidiary Guarantee
|
|
|
68
|
|
|
SECTION 1402. Limitation on Liability; Termination,
Release and Discharge Upon Merger or
Consolidation or Sale of All or
Substantially All Assets of the Subsidiary
Guarantor; Termination on Conversion
|
|
|
70
|
|
|
SECTION 1403. Release of the Subsidiary Guarantee
|
|
|
71
|
|
|
SECTION 1404. Waiver of Subrogation
|
|
|
72
|
|
v
NEWMONT MINING CORPORATION
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trus
t
Indenture Act of 1939:
|
|
|
|
|
Trust Indenture
|
|
|
Act Section
|
Indenture Section
|
|
§ 310
|
(a)(1)
|
609
|
|
|
(a)(2)
|
609
|
|
|
(a)(3)
|
Not Applicable
|
|
|
(a)(4)
|
Not Applicable
|
|
|
(b)
|
608
|
|
|
|
610
|
|
§ 311
|
(a)
|
613
|
|
|
(b)
|
613
|
|
§ 312
|
(a)
|
701
|
|
|
|
702
|
|
|
(b)
|
702
|
|
|
(c)
|
702
|
|
§ 313
|
(a)
|
703
|
|
|
(b)
|
703
|
|
|
(c)
|
703
|
|
|
(d)
|
703
|
|
§ 314
|
(a)
|
704
|
|
|
(a)(4)
|
101
|
|
|
|
1004
|
|
|
(b)
|
Not Applicable
|
|
|
(c)(1)
|
102
|
|
|
(c)(2)
|
102
|
|
|
(c)(3)
|
Not Applicable
|
|
|
(d)
|
Not Applicable
|
|
|
(e)
|
102
|
|
§ 315
|
(a)
|
601
|
|
|
(b)
|
602
|
|
|
(c)
|
601
|
|
|
(d)
|
601
|
|
|
(e)
|
514
|
|
§ 316
|
(a)
|
101
|
|
|
(a)(1)(A)
|
502
|
|
|
|
512
|
|
|
(a)(1)(B)
|
513
|
|
|
(a)(2)
|
Not Applicable
|
|
|
(b)
|
508
|
|
|
(c)
|
104
|
|
§ 317
|
(a)(1)
|
503
|
|
|
(a)(2)
|
504
|
|
|
(b)
|
1003
|
|
§ 318
|
(a)
|
107
|
|
|
|
|
|
Note
:
|
|
This reconciliation and tie shall not, for any purpose, be deemed to be a part of
the Indenture.
|
INDENTURE,
dated as of September 18, 2009, among NEWMONT MINING CORPORATION, a Delaware
corporation (the “Company”), NEWMONT USA LIMITED, a Delaware corporation, as Subsidiary Guarantor
(the “Subsidiary Guarantor”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee (the
“Trustee”).
Recitals of the Company
The Company and the Subsidiary Guarantor have duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or
other evidences of indebtedness (herein called the “Securities”), which may be guaranteed by the
Subsidiary Guarantor, to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the Company and the
Subsidiary Guarantor, in accordance with its terms, have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101.
Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article
and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them
in accordance with generally accepted accounting principles, and, except as otherwise herein
expressly provided, the term “generally accepted accounting principles” with respect to any
computation required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation;
(4) unless the context otherwise requires, any reference to an “Article” or a “Section”
refers to an Article or a Section, as the case may be, of this Indenture;
(5) “including” means including without limitation;
(6) words in the singular include the plural and words in the plural include the singular;
(7) the principal amount of any non-interest bearing or other discount security at any
date shall be the principal amount thereof that would be shown on a balance sheet of the issuer
dated such date prepared in accordance with generally accepted accounting principles; and
(8) the words “herein”, “hereof” and “hereunder” and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or other subdivision.
“Act”, when used with respect to any Holder, has the meaning specified in Section 104.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing;
provided
,
however
, that
the existence of a management contract by the Company or an Affiliate of the Company to manage
another entity shall not be deemed to be control.
“Attributable Debt” means, as to any particular lease under which the Company is at the time
liable, at any date as of which the amount thereof is to be determined, the total net amount of
rent required to be paid by the Company under such lease during the remaining term thereof,
discounted from the respective due dates thereof to such date at the rate of interest per annum
implicit in the terms of such lease (as determined by any two of the following: the chairman, the
president, the executive vice president, any senior vice president, the treasurer, the controller
or the secretary of the Company) compounded semi-annually. The net amount of rent required to be
paid under any such lease for any such period shall be the amount of the rent payable by the lessee
with respect to such period, after excluding amounts required to be paid on account of maintenance
and repairs, insurance, taxes, assessments, water rates and similar charges. In the case of any
lease which is terminable by the lessee upon the payment of a penalty, such net amount shall also
include the amount of such penalty, but no rent shall be considered as required to be paid under
such lease subsequent to the first date upon which it may be so terminated.
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 614 to
act on behalf of the Trustee to authenticate Securities of one or more series.
“Bankruptcy Law” means Title 11 of the United States Code or any similar federal or state law
for the relief of debtors.
-2-
“Board of Directors” means either the board of directors of the Company or any duly authorized
committee of that board.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the Trustee.
“Business Day”, when used with respect to any Place of Payment, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law or executive order to close.
“Commission” means the Securities and Exchange Commission, from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
“Company” means the Person named as the “Company” in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request” or “Company Order” means a written request or order signed in the name of
the Company by its Chairman of the Board, its Chief Executive Officer, its President, its Chief
Financial Officer or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, and delivered to the Trustee.
“Consolidated Net Tangible Assets” means the aggregate amount of assets (less applicable
reserves and other properly deductible items) after deducting therefrom (a) all current liabilities
(excluding any thereof which are by their terms extendible or renewable at the option of the
obligor thereon to a time more than 12 months after the time as of which the amount thereof is
being computed and excluding current maturities of long-term indebtedness and capital lease
obligations) and (b) all goodwill, all as shown in the most recent consolidated balance sheet of
the Company and its Subsidiaries computed in accordance with generally accepted accounting
principles.
“Corporate Trust Office” means the designated office of the Trustee at which at any time its
corporate trust business shall be administered, which office at the date hereof is located at 700
South Flower Street, Suite 500, Los Angeles, California 90017, Attention: Corporate Trust
Administration, or such other address as the Trustee may designate from time to time by notice to
the Holders and the Company, or the principal corporate trust office of any successor Trustee (or
such other address as such successor Trustee may designate from time to time by notice to the
Holders and the Company).
“corporation” means a corporation, association, company, joint-stock company, limited
liability company or business trust.
-3-
“Covenant Defeasance” has the meaning specified in Section 1303.
“Custodian” means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
“Defaulted Interest” has the meaning specified in Section 307.
“Defeasance” has the meaning specified in Section 1302.
“Depositary” means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, a clearing agency registered under the Exchange Act that
is designated to act as Depositary for such Securities as contemplated by Section 301.
“Event of Default” has the meaning specified in Section 501.
“Exchange Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in
each case as amended from time to time.
“Expiration Date” has the meaning specified in Section 104.
“Funded Debt” means all indebtedness for money borrowed having a maturity of more than 12
months from the date as of which the amount thereof is to be determined or having a maturity of
less than 12 months but by its terms being renewable or extendable beyond 12 months from such date
at the option of the borrower.
“Global Security” means a Security that evidences all or part of the Securities of any series
and bears the legend set forth in Section 204 (or such legend as may be specified as contemplated
by Section 301 for such Securities).
“Holder” means a Person in whose name a Security is registered in the Security Register.
“Indenture” means this instrument as originally executed and as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively. The term “Indenture”
shall also include the terms of particular series of Securities established as contemplated by
Section 301.
“interest”, when used with respect to an Original Issue Discount Security which by its terms
bears interest only after Maturity, means interest payable after Maturity.
“Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of
an installment of interest on such Security.
“Investment Company Act” means the Investment Company Act of 1940 and any statute successor
thereto, in each case as amended from time to time.
-4-
“Material Indebtedness” means indebtedness (other than indebtedness under the Securities) of
any one or both of the Company and the Subsidiary Guarantor in an aggregate principal amount
exceeding $75,000,000.
“Maturity”, when used with respect to any Security, means the date on which the principal of
such Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Notice of Default” means a written notice of the kind specified in Section 501(4).
“Officer” means the Chairman of the Board, the Chief Executive Officer, the President, the
Chief Financial Officer, any Vice President, the Treasurer or the Secretary of the Company. The
term Officer of the Subsidiary Guarantor has a correlative meaning.
“Officers’ Certificate” means a certificate signed by two Officers or attorneys-in-fact or by
an Officer and either an Assistant Treasurer or an Assistant Secretary of the Company or the
Subsidiary Guarantor, as applicable, and delivered to the Trustee. One of the officers signing an
Officers’ Certificate given pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the Company.
“Opinion of Counsel” means a written opinion from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of or counsel to the Company.
“Original Issue Discount Security” means any Security which 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 502.
“Outstanding”, when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture,
except:
(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(2) Securities for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities;
provided
that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to Section 1302; and
-5-
(4) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu
of which other Securities have been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;
provided
,
however
, that in determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given, made or taken any request, demand, authorization, direction,
notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an
Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the
principal thereof which would be due and payable as of such date upon acceleration of the Maturity
thereof to such date pursuant to Section 502, (B) if, as of such date, the principal amount payable
at the Stated Maturity of a Security is not determinable, the principal amount of such Security
which shall be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated in one or more
foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S.
dollar equivalent, determined as of such date in the manner provided as contemplated by
Section 301, of the principal amount of such Security (or, in the case of a Security described in
Clause (A) or (B) above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action, only Securities which a Trust
Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned
which 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 Affiliate of
the Company or of such other obligor.
“Paying Agent” means any Person authorized by the Company to pay the principal of or any
premium or interest on any Securities on behalf of the Company.
“Person” means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company, government or
any agency or political subdivision thereof or any other entity.
“Place of Payment”, when used with respect to the Securities of any series, means the place or
places where the principal of and any premium and interest on the Securities of that series are
payable as specified as contemplated by Section 301.
“Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same debt as that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under Section 306 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Security.
-6-
“Principal Property” means any mine, together with any fixtures comprising a part thereof, and
any plant or other facility, together with any land upon which such plant or other facility is
erected and fixtures comprising a part thereof, used primarily for mining or processing, in each
case, located in the United States of America and the net book value of which on the date as of
which the determination is being made exceeds 5% of Consolidated Net Tangible Assets;
provided
,
that Principal Property shall not include (a) any mine, plant or facility which, in the opinion of
the Board of Directors of the Company, is not of material importance to the total business
conducted by the Company and its Subsidiaries as an entirety or (b) any portion of a particular
mine, plant or facility which, in the opinion of the Company is not of material importance to the
use or operation of such mine, plant or facility.
“Redemption Date”, when used with respect to any Security to be redeemed, means the date fixed
for such redemption by or pursuant to this Indenture.
“Redemption Price”, when used with respect to any Security to be redeemed, means the price at
which it is to be redeemed pursuant to this Indenture.
“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities
of any series means the date specified for that purpose as contemplated by Section 301.
“Restricted Subsidiary” means any Subsidiary (a) substantially all of the property of which is
located, or substantially all of the business of which is carried on, within the United States of
America and (b) which owns a Principal Property;
provided
, that Restricted Subsidiary shall not
include any Subsidiary the primary business of which consists of financing operations in connection
with leasing and conditional sales transactions on behalf of the Company and its Subsidiaries,
and/or purchasing accounts receivable and/or making loans secured by accounts receivable or
inventory, or which is otherwise primarily engaged in the business of a finance company.
“Securities” has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this Indenture.
“Securities Act” means the Securities Act of 1933 and any statute successor thereto, in each
case as amended from time to time.
“Security Register” and “Security Registrar” have the respective meanings specified in
Section 305.
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 307.
“Stated Maturity”, when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable, but
shall not include any contingent obligations to repay or repurchase any such principal prior to the
date originally scheduled for the payment thereof.
-7-
“Subsidiary” of the Company means (i) a corporation a majority of whose capital stock with
voting power, under ordinary circumstances, to elect directors is at the time, directly or
indirectly, owned by the Company, by the Company and one or more Subsidiaries of the Company or by
one or more Subsidiaries of the Company or (ii) any other Person (other than a corporation) in
which the Company, one or more Subsidiaries of the Company or the Company and one or more
Subsidiaries of the Company, directly or indirectly, at the date of determination thereof, has
greater than a 50% ownership interest.
“Subsidiary Guarantor” means Newmont USA Limited; provided, however, that upon the release and
discharge of Newmont USA Limited from its Subsidiary Guarantee in accordance with this Indenture,
such Person shall cease to be a Subsidiary Guarantor.
“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of
which this instrument was executed;
provided, however,
that in the event the Trust Indenture Act of
1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to
the Securities of any series shall mean the Trustee with respect to Securities of that series.
“Trust Officer” means, when used with respect to the Trustee, any officer within the corporate
trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant treasurer, trust
officer or any other officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such person’s knowledge of and familiarity with the
particular subject and having direct responsibility for the administration of this Indenture.
“U.S. Government Obligation” has the meaning specified in Section 1304.
“Vice President”, when used with respect to the Company, the Subsidiary Guarantor or the
Trustee, means any vice president, whether or not designated by a number or a word or words added
before or after the title “vice president”.
SECTION 102.
Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee:
(a) an Officers’ Certificate in form and substance reasonably satisfactory to the Trustee
stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
-8-
(b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating
that, in the opinion of such counsel, all such conditions precedent have been complied with.
In giving such Opinion of Counsel, counsel may rely as to factual matters on an Officers’
Certificate or on certificates of public officials.
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (except for certificates provided for in Section 1004) shall include,
(1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination
or investigation as is necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or
covenant has been complied with.
SECTION 103.
Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
-9-
SECTION 104.
Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the
Holders signing such instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this Indenture and
(subject to Section 601) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company
in reliance thereon, whether or not notation of such action is made upon such Security.
The Company may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Securities of such series,
provided
that the
Company may not set a record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or direction referred to in
the next paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders after such record
date;
provided
that no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities
of such series on such record date. Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which a record date has previously been
set pursuant to this paragraph (whereupon the record date previously set shall automatically and
with no
-10-
action by any Person be cancelled and of no effect), and nothing in this paragraph shall be
construed to render ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable Expiration Date to be given
to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set
forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining the Holders of
Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of
Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to
institute proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any record date is set
pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record
date, and no other Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date;
provided
that no such
action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by
Holders of the requisite principal amount of Outstanding Securities of such series on such record
date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record
date for any action for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action by any Person be
cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the Company’s
expense, shall cause notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party hereto which sets such
record dates may designate any day as the “Expiration Date” and from time to time may change the
Expiration Date to any earlier or later day;
provided
that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in writing, and to
each Holder of Securities of the relevant series in the manner set forth in Section 106, on or
prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any
record date set pursuant to this Section, the party hereto which set such record date shall be
deemed to have initially designated the 180th day after such record date as the Expiration Date
with respect thereto, subject to its right to change the Expiration Date as provided in this
paragraph.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with
regard to any particular Security may do so with regard to all or any part of the principal amount
of such Security or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
-11-
SECTION 105.
Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished
addressed as follows:
if to the Company or the Subsidiary Guarantor:
Newmont Mining Corporation
6363 South Fiddler’s Green Circle
Greenwood Village, Colorado 80111
Attention: Treasurer
Telecopy: (303) 837-6011
if to the Trustee:
The Bank of New York Mellon Trust Company, N.A.
700 South Flower Street, Suite 500
Los Angeles, California 90017
Attention: Corporate Trust Administration
Telecopy: (213) 630-6298
For purposes of Section 305 (with respect to presentation of Securities for payment or for
registrations of transfer or exchange) if to the Trustee:
The Bank of New York Mellon
111 Sanders Creek Parkway
East Syracuse, New York 13057
The Company, the Subsidiary Guarantor or the Trustee by notice to the others may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a registered Securityholder shall be mailed to the
Securityholder at the Securityholder’s address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time prescribed.
SECTION 106.
Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date (if any), and not earlier than the earliest
date (if any), prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such
-12-
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 case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
The Trustee agrees to accept and act upon instructions or directions pursuant to this
Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic
methods; provided, however, that (a) the party providing such written instructions, subsequent to
such transmission of written instructions, shall provide the originally executed instructions or
directions to the Trustee in a timely manner, and (b) such originally executed instructions or
directions shall be signed by an authorized representative of the party providing such instructions
or directions. If the party elects to give the Trustee e-mail or facsimile instructions (or
instructions by a similar electronic method) and the Trustee in its discretion elects to act upon
such instructions, the Trustee’s understanding of such instructions shall be deemed controlling.
The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly
from the Trustee’s reliance upon and compliance with such instructions notwithstanding such
instructions conflict or are inconsistent with a subsequent written instruction. The party
providing electronic instructions agrees to assume all risks arising out of the use of such
electronic methods to submit instructions and directions to the Trustee, including without
limitation the risk of the Trustee acting on unauthorized instructions, and the risk or
interception and misuse by third parties.
Notwithstanding anything to the contrary contained herein, as long as the Securities are in
the form of a Global Security, notice to the Holders may be made electronically in accordance with
procedures of the Depositary.
SECTION 107.
Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with another provision which
is required to be included in this Indenture by the Trust Indenture Act, the provision required by
the Trust Indenture Act shall control. The Subsidiary Guarantor in addition to performing its
obligations under its Subsidiary Guarantee shall perform such other obligations as may be imposed
upon it with respect to this Indenture under the Trust Indenture Act.
SECTION 108.
Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
-13-
SECTION 109.
Successors and Assigns.
All covenants and agreements in this Indenture by the Company or the Subsidiary Guarantor
shall bind its successors and assigns, whether so expressed or not. All agreements of the Trustee
in this Indenture shall bind its successors.
SECTION 110.
Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 111.
Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 112.
Governing Law.
This Indenture and the Securities shall be governed by, and construed in accordance with, the
laws of the State of New York.
SECTION 113.
Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities (other than a
provision of any Security which specifically states that such provision shall apply in lieu of
this Section)) payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date,
or at the Stated Maturity.
SECTION 114.
No Recourse Against Others
.
An incorporator, director, officer, employee, Affiliate or stockholder of the Company or the
Subsidiary Guarantor, solely by reason of this status, shall not have any liability for any
obligations of the Company or the Subsidiary Guarantor under the Securities, this Indenture or the
Subsidiary Guarantees or for any claim based on, in respect of or by reason of such obligations or
their creation. By accepting a Security, each Securityholder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the issue of the
Securities.
SECTION 115.
Withholding; Offset
The Company shall be entitled to reduce or otherwise set-off against any payments made or
deemed made by the Company to Holders in respect of the Securities for any amounts the Company
believes it is required to withhold by law. Any amounts
-14-
withheld pursuant to this Section 115
shall be paid over by the Company to the appropriate taxing authority.
SECTION 116.
Holder Documentation
.
Prior to or upon the occurrence of any event that results in an actual or deemed payment by
the Company to Holders in respect of the Securities, the Company (through the Trustee, Paying
Agent, or otherwise) may request a Holder to furnish any appropriate documentation that may be
required in order to determine the Company’s withholding obligations under applicable law
(including, without limitation, a United States Internal Revenue Service Form W-9, Form W-8BEN,
Form W-8ECI, or any certifications prepared by the Company or on its behalf in order to enable the
Company to attempt to comply with its potential withholding obligations under the “Foreign
Investment in Real Property Tax Act,” as appropriate). Upon the receipt of any such documentation,
or in the event no such documentation is provided, the Company (through the Trustee, Paying Agent,
or otherwise) will withhold to the extent required by applicable law.
SECTION 117.
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 (third-party
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 prevent any such failure or
delay and to resume performance as soon as practicable under the circumstances.
SECTION 118.
Waiver of Jury Trial
.
EACH OF THE COMPANY, THE SUBSIDIARY GUARANTOR 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.
ARTICLE TWO
Security Forms
SECTION 201.
Forms Generally.
The Securities of each series shall be in substantially the form set forth in this Article, or
in such other form as shall be established by or pursuant to a Board Resolution 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
such letters, numbers or other marks of identification and
-15-
such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange or Depositary
therefor or as may, consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall
be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication
and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders
or may be produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
SECTION 202.
Form of Face of Security.
[
Insert any legend required by the Internal Revenue Code and the regulations thereunder.
]
NEWMONT MINING CORPORATION
[insert title of securities]
Newmont Mining Corporation, a corporation duly organized and existing under the laws of
Delaware (herein called the “Company”, which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
, or registered assigns, the principal sum of
Dollars on
[
if the Security is to bear interest prior to Maturity, insert
— , and to pay interest thereon from
or from the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on
and
in each year, commencing
, at the rate of
% per annum, until the principal hereof is paid or made available for
payment
[
if applicable, insert — , provided
that any principal and premium, and any such
installment of interest, which is overdue shall bear interest at the rate of
% per annum (to the
extent that the payment of such interest shall be legally enforceable), from the dates such amounts
are due until they are paid or made available for payment, and such interest shall be payable on
demand
]
. The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the
or
(whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of this series may be
-16-
listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture
]
.
[
If the Security is not to bear interest prior to Maturity, insert
— The principal of this Security
shall not bear interest except in the case of a default in payment of principal upon acceleration,
upon redemption or at Stated Maturity and in such case the overdue principal and any overdue
premium shall bear interest at the rate of
% per annum (to the extent that the payment of such
interest shall be legally enforceable), from the dates such amounts are due until they are paid or
made available for payment. Interest on any overdue principal or premium shall be payable on
demand.
[
Any such interest on overdue principal or premium which is not paid on demand shall bear
interest at the rate of
% per annum (to the extent that the payment of such interest on
interest shall be legally enforceable), from the date of such demand until the amount so demanded
is paid or made available for payment. Interest on any overdue interest shall be payable on
demand.
]
]
Payment of the principal of (and premium, if any) and
[
if applicable, insert
— any such
]
interest on this Security will be made at the office or agency of the Company maintained for that
purpose in
, in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts
[
if applicable, insert
— ;
provided
,
however
, that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall appear in the Security
Register
]
.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
In Witness Whereof
, the Company has caused this instrument to be duly executed under
its corporate seal.
Dated:
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NEWMONT MINING CORPORATION
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By
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Attest:
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SECTION 203.
Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the Company (herein called
the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of
September 18, 2009 (herein called the “Indenture”, which term
-17-
shall have the meaning assigned to it in such instrument), among the Company, Newmont USA
Limited, as Subsidiary Guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee
(herein called the “Trustee”, which term includes any successor trustee under the Indenture), and
reference is hereby made to the Indenture for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Subsidiary Guarantor, the Trustee and
the Holders of the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on the face hereof
[
if
applicable, insert —,
limited in aggregate principal amount to $
]
.
[
If applicable, insert
— The Securities of this series are subject to redemption upon not less
than 30 days’ notice by mail,
[
if applicable, insert
— (1) on
in any year commencing
with the year
and ending with the year
through operation of the sinking fund for this
series at a Redemption Price equal to 100% of the principal amount, and (2)
]
at any time
[
if
applicable, insert
— on or after
, 20
]
, as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the principal amount): If
redeemed
[
if applicable, insert
— on or before
,
%, and if redeemed
]
during the
12-month period beginning
of the years indicated,
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Redemption
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Redemption
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Year
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Price
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Year
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Price
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and thereafter at a Redemption Price equal to
% of the principal amount, together in the case
of any such redemption
[
if applicable, insert
— (whether through operation of the sinking fund or
otherwise)
]
with accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in the Indenture.
]
[
If applicable, insert
— The Securities of this series are subject to redemption upon not less
than 30 days’ notice by mail, (1) on
in any year commencing with the year
and
ending with the year
through operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below, and (2) at any time
[
if applicable, insert
— on or
after
]
, as a whole or in part, at the election of the Company, at the Redemption
Prices for redemption otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If redeemed during the 12-month
period beginning
of the years indicated,
-18-
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Redemption Price
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For Redemption
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Redemption Price For
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Through Operation
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Redemption Otherwise
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of the
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Than Through Operation
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Year
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Sinking Fund
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of the Sinking Fund
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and thereafter at a Redemption Price equal to
% of the principal amount, together in the case
of any such redemption (whether through operation of the sinking fund or otherwise) with accrued
interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.
]
[
If applicable, insert
— Notwithstanding the foregoing, the Company may not, prior to
, redeem any Securities of this series as contemplated by
[
if applicable, insert
—
Clause (2) of
]
the preceding paragraph as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of less than
%
per annum.
]
[
If applicable, insert
— The sinking fund for this series provides for the redemption on
in each year beginning with the year
and ending with the year
of
[
if
applicable, insert
— not less than $
(“mandatory sinking fund”) and not more than
]
$
aggregate principal amount of Securities of this series. Securities of this series
acquired or redeemed by the Company otherwise than through
[
if applicable, insert
— mandatory
]
sinking fund payments may be credited against subsequent
[
if applicable, insert
— mandatory
]
sinking fund payments otherwise required to be made
[
if applicable, insert
— , in the inverse order
in which they become due
]
.
]
[
If the Security is subject to redemption of any kind, insert
— In the event of redemption of
this Security in part only, a new Security or Securities of this series and of like tenor for the
unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.
]
[
The Securities shall have the benefit of the Guaranty of Newmont USA Limited on the terms set
forth therein
.
]
[
If applicable, insert
— The Indenture contains provisions for defeasance at any time of
[
the
entire indebtedness of this Security
] [
or
] [
certain restrictive covenants and
-19-
Events of Default
with respect to this Security
] [
, in each case
]
upon compliance with certain conditions set forth
in the Indenture.
]
[
If the Security is not an Original Issue Discount Security, insert
— If an Event of Default
with respect to Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture.
]
[
If the Security is an Original Issue Discount Security, insert
— If an Event of Default with
respect to Securities of this series shall occur and be continuing, an amount of principal of the
Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to —
insert formula for determining the
amount
. Upon payment (i) of the amount of principal so declared due and payable and (ii) of
interest on any overdue principal, premium and interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company’s obligations in respect
of the payment of the principal of and premium and interest, if any, on the Securities of this
series shall terminate.
]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of at least a majority in principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee
indemnity satisfactory to the Trustee, and the Trustee shall not have received from the Holders of
a majority in principal amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days
after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the respective due dates expressed herein.
-20-
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of $
and any integral multiple thereof. As provided in the Indenture and subject
to certain limitations therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this 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 this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
SECTION 204.
Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the Securities evidenced
thereby, every Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:
This Security is a Global Security within the meaning of the Indenture hereinafter referred to
and is registered in the name of a Depositary or a nominee thereof. This Security may not be
exchanged in whole or in part for a Security registered, and no transfer of this Security in whole
or in part may be registered, in the name of any Person other than such Depositary or a nominee
thereof, except in the limited circumstances described in the Indenture.
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SECTION 205.
Form of Trustee’s Certificate of Authentication.
The Trustee’s certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK
MELLON TRUST COMPANY, N.A.,
As Trustee
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Dated:
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By
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Authorized Signatory
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ARTICLE THREE
The Securities
SECTION 301.
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 Board Resolution and, subject to Section 303, set forth, or determined in the manner provided,
in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish the Securities of
the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of the series which
may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been authenticated and
delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall be payable, if other
than 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 such interest;
(4) the date or dates on which the principal of any Securities of the series is payable;
(5) the rate or rates at which any Securities of the series shall bear interest, if any,
the date or dates from which any such interest shall accrue, the Interest Payment
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Dates on
which any such interest shall be payable and the Regular Record Date for any such interest
payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium and interest on any
Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series may be redeemed, in whole or in part, at the
option of the Company and, if other than by a Board Resolution, the manner in which any
election by the Company to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any Securities of the
series pursuant to any sinking fund or analogous provisions or at the option of the Holder
thereof and the period or periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series shall be redeemed or purchased, in whole or
in part, pursuant to such obligation;
(9) if other than denominations of $2,000 and any integral multiple of $1,000 in excess
thereof, the denominations in which any Securities of the series shall be issuable;
(10) if the amount of principal of or any premium or interest on any Securities of the
series may be determined with reference to an index or pursuant to a formula, the manner in
which such amounts shall be determined;
(11) if other than the currency of the United States of America, the currency, currencies
or currency units in which the principal of or any premium or interest on any Securities of the
series shall be payable and the manner of determining the equivalent thereof in the currency of
the United States of America for any purpose, including for purposes of the definition of
“Outstanding” in Section 101;
(12) if the principal of or any premium or interest on any Securities of the series is to
be payable, at the election of the Company or the Holder thereof, in one or more currencies or
currency units other than that or those in which such Securities are stated to be payable, the
currency, currencies or currency units in which the principal of or any premium or interest on
such Securities as to which such election is made shall be payable, the periods within which
and the terms and conditions upon which such election is to be made and the amount so payable
(or the manner in which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion of the principal
amount of any Securities of the series which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 502;
(14) if the principal amount payable at the Stated Maturity of any Securities of the
series will not be determinable as of any one or more dates prior to the Stated Maturity, the
amount which shall be deemed to be the principal amount of such Securities as of any such date
for any purpose thereunder or hereunder, including the
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principal amount thereof which shall be
due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be
Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in
which such amount deemed to be the principal amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or any specified part,
shall be defeasible pursuant to Section 1302 or Section 1303 or both such Sections and, if
other than by a Board Resolution, the manner in which any election by the Company to defease
such Securities shall be evidenced;
(16) if applicable, that any Securities of the series shall be issuable in whole or in
part in the form of one or more Global Securities and, in such case, the respective
Depositaries for such Global Securities, the form of any legend or legends which shall be borne
by any such Global Security in addition to or in lieu of that set forth in Section 204 and any
circumstances in addition to or in lieu of those set forth in Clause (2) of the last paragraph
of Section 305 in which any such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security in whole or in part may be
registered, in the name or names of Persons other than the Depositary for such Global Security
or a nominee thereof;
(17) any addition to or change in the Events of Default which applies to any Securities of
the series and any change in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable pursuant to Section 502;
(18) if applicable, that the Securities are guaranteed by the Guaranty of the Subsidiary
Guarantor;
(19) any addition to or change in the covenants set forth in Article Ten which applies to
Securities of the series; and
(20) any other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture, except as permitted by Section 901(5)).
All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 303) set forth, or determined in the manner provided, in the Officers’
Certificate referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of
the Officers’ Certificate setting forth the terms of the series.
SECTION 302.
Denominations.
The Securities of each series shall be issuable only in registered form without coupons and
only in such denominations as shall be specified as contemplated by
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Section 301. In the absence of
any such specified denomination with respect to the Securities of any series, the Securities of
such series shall be issuable in denominations of $2,000 and any integral multiple of $1,000 in
excess thereof.
SECTION 303.
Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of the Board, its
Chief Executive Officer, its President, its Chief Financial Officer or one of its Vice Presidents,
under its corporate seal reproduced thereon (which may be a facsimile) attested by its Secretary or
one of its Assistant Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such 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, together with a Company Order for the authentication and delivery of such
Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver
such Securities. If the form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301, in authenticating
such Securities, and accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or pursuant to Board Resolution
as permitted by Section 201, that such form has been established in conformity with the
provisions of this Indenture;
(2) if the terms of such Securities have been established by or pursuant to Board
Resolution as permitted by Section 301, that such terms have been established in conformity
with the provisions of this Indenture;
(3) that such Securities, when authenticated and delivered by the Trustee and issued by
the Company in the manner and subject to any conditions specified in such Opinion of Counsel,
will constitute valid and legally binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting creditors’ rights
and to general equity principles; and
(4) that all laws and requirements in respect of the execution and delivery by the Company
of such Securities have been complied with.
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If such form or terms have been so established, the Trustee shall not be required to authenticate
such Securities if the issue of such Securities pursuant to this Indenture will affect the
Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in
a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all
Securities of a series are not to be originally issued at one time, it shall not be necessary to
deliver the Officers’ Certificate otherwise required pursuant to Section 301 or the Company Order
and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for cancellation as provided in Section 309, for
all purposes of this Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 304.
Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and
upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the Company will cause definitive Securities
of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities of such series at
the office or agency of the Company in a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or
more definitive Securities of the same series, of any authorized denominations and of like tenor
and
aggregate principal amount. Until so exchanged, the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as definitive Securities of
such series and tenor.
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SECTION 305.
Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register
(the register maintained in such office and in any other office or agency of the Company in a Place
of Payment being herein sometimes collectively referred to as the “Security Register”) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby appointed
“Security Registrar” for the purpose of registering Securities and transfers of Securities as
herein provided.
Upon surrender for registration of transfer of any Security of a series at the office or
agency of the Company in a Place of Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee or transferees,
one or more new Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for other Securities of
the same series, of any authorized denominations and of like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to receive.
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.
Every Security presented or surrendered for registration of transfer or for exchange shall (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney 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 a sum 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 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in
part, the Company shall not be required (A) to issue, register the transfer of or exchange any
Securities of that series (or of that series and specified tenor, as the case may be) during a
period beginning at the opening of business 15 days before the day of the mailing of a notice of
redemption of any such Securities selected for redemption
under Section 1103 and ending at the close of business on the day of such mailing, or (B) to
register the transfer of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
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The provisions of Clauses (1), (2), (3) and (4) below shall apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be registered in the
name of the Depositary designated for such Global Security or a nominee thereof and delivered
to such Depositary or a nominee thereof or custodian therefor, and each such Global Security
shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global Security may be
exchanged in whole or in part for Securities registered, and no transfer of a Global Security
in whole or in part may be registered, in the name of any Person other than the Depositary for
such Global Security or a nominee thereof unless (A) such Depositary (i) has notified the
Company that it is unwilling or unable to continue as Depositary for such Global Security or
(ii) has ceased to be a clearing agency registered under the Exchange Act, (B) there shall have
occurred and be continuing an Event of Default with respect to such Global Security or (C)
there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as
have been specified for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for other Securities
may be made in whole or in part, and all Securities issued in exchange for a Global Security or
any portion thereof shall be registered in such names as the Depositary for such Global
Security shall direct.
(4) Every Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this
Section, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and delivered in
the form of, and shall be, a Global Security, unless such Security is registered in the name of
a Person other than the Depositary for such Global Security or a nominee thereof.
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 the
Depositary’s 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.
None of the Company, the Trustee, any Paying Agent or any Bond Registrar will have any
responsibility or liability for any aspect of Depositary records relating to, or payments made on
account of, beneficial ownership interests in a Global Bond or for maintaining, supervising or
reviewing any Depositary records relating to such beneficial
ownership interests, or for transfers of beneficial interests in the Bonds or any transactions
between the Depositary and beneficial owners.
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SECTION 306.
Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and
of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
SECTION 307.
Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to any series of
Securities, interest on any Security which 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
such interest.
Any interest on any Security of any series which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record
Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in Clause (1) or (2) below:
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(1) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities of such series (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 an amount of money 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, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly 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 therefor to be given to each
Holder of Securities of such series in the manner set forth in Section 106, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) 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 such Securities 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 manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 308.
Persons Deemed Owners.
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 and
any premium and (subject to Section 307) any interest on such Security and for all other purposes
whatsoever, whether or not such
Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
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SECTION 309.
Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery 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. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of as
directed by a Company Order.
SECTION 310.
Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 311.
CUSIP and ISIN Numbers
.
The Company in issuing the Securities may use “CUSIP” and “ISIN” numbers (if then generally in
use);
provided
,
however
, that neither the Company nor the Trustee makes any
representation as to the correctness of CUSIP or ISIN numbers as printed on any Security or any
notice to Holders, and any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities and that reliance may be placed
only on the other identification numbers printed on the Securities. No notice or exchange shall be
affected by any defect in or omission of such CUSIP or ISIN numbers. The Company shall promptly
notify the Trustee in writing of any change in the CUSIP and ISIN numbers.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401.
Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(1) all Securities theretofore authenticated and delivered (other than (i)
Securities which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306 and (ii) Securities for whose
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payment money has
theretofore been deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for cancellation; or
(2) all such Securities not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year,
or
(iii) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose money in an amount
sufficient to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal and any premium and
interest to the date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the
Company; and
(3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 607, the obligations of the Trustee to any Authenticating
Agent under Section 614 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003 shall survive.
SECTION 402.
Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the
principal and any premium and interest for whose payment such money has been deposited with
the Trustee.
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ARTICLE FIVE
Remedies
SECTION 501.
Events of Default.
“Event of Default”, wherever used herein with respect to Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that series when it
becomes due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any Security of that
series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by the terms of a
Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty of the Company in
this Indenture (other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of 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; or
(5) default by the Company or Newmont USA Limited with respect to any Material
Indebtedness, whether such Material Indebtedness now exists or shall hereafter be created, (i)
resulting in such indebtedness becoming or being declared due and payable prior to the date on
which it would otherwise become due and payable or (ii) constituting a failure to pay the
principal of any such indebtedness when due and payable at its stated maturity, upon required
repurchase, upon declaration or otherwise;
provided
, that any Event of Default under
either of the foregoing clauses (i) and (ii) shall be deemed cured and not to be continuing
upon the payment of such indebtedness or the rescission or annulment of any acceleration of
such indebtedness; or
(6) commencement by the Company or Newmont USA Limited of a voluntary case under any
applicable Bankruptcy Law, or the consent to the entry of
an order for relief in an involuntary case under any Bankruptcy Law, or the consent to the
appointment or taking possession by a Custodian of the Company or Newmont
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USA Limited,
respectively, or for all or substantially all its property, or the making of any general
assignment for the benefit of creditors; or
(7) entry of a decree or order for relief in respect of the Company or Newmont USA Limited
by a court of competent jurisdiction in an involuntary case under any applicable Bankruptcy
Law, or the appointment of a Custodian of the Company or Newmont USA Limited, respectively, or
for all or substantially all of its property, or the ordering of the winding up or liquidation
of its affairs, and such decree or order remains unstayed and in effect for a period of 90
consecutive days; or
(8) except as permitted by this Indenture, (i) the Subsidiary Guarantee shall be held in
any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in
full force and effect, or (ii) the Subsidiary Guarantor shall deny or disaffirm its obligation
under the Subsidiary Guarantee; or
(9) any other Event of Default provided with respect to Securities of that series.
SECTION 502.
Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section 501(6) or 501(7))
with respect to Securities of any series at the time Outstanding occurs and is continuing, then in
every such case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount of all the Securities of
that series (or, if any Securities of that series are Original Issue Discount Securities, such
portion of the principal amount of such Securities as may be specified by the terms thereof) to be
due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by
Holders), and upon any such declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default specified in Section 501(6) or 501 (7) with
respect to Securities of any series at the time Outstanding occurs, the principal amount of all the
Securities of that series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be specified by the
terms thereof) shall automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series
has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of
the Outstanding Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay
(1) all overdue interest on all Securities of that series,
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(2) the principal of (and premium, if any, on) any Securities of that series
which have become due otherwise than by such declaration of acceleration and any
interest thereon at the rate or rates prescribed therefor in such Securities,
(3) to the extent that payment of such interest is lawful, interest upon overdue
interest at the rate or rates prescribed therefor in such Securities, and
(4) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
SECTION 503.
Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when such interest
becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any, on) any
Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Securities, the whole amount then due and payable on such Securities for principal and any premium
and interest and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
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SECTION 504.
Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding;
provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors’ or other similar
committee.
SECTION 505.
Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in
respect of which such judgment has been recovered.
SECTION 506.
Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or any premium or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607; and
SECOND: To the payment of the amounts then due and unpaid for principal of and any
premium and interest on the Securities in respect of which or for the benefit of which such
money has been collected, ratably, without preference or
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priority of any kind, according to the amounts due and payable on such Securities for
principal and any premium and interest, respectively.
SECTION 507.
Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event
of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of
that series shall have made written request to the Trustee to institute proceedings in respect
of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity satisfactory to the
Trustee against the costs, expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such Holders.
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SECTION 508.
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Unconditional Right of Holders to Receive Principal, Premium and Interest.
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Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of and any
premium and (subject to Section 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be impaired without the
consent of such Holder.
SECTION 509.
Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
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any reason, or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company, the Trustee and the
Holders shall be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510.
Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511.
Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512.
Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series,
provided
that
(1) such direction shall not be in conflict with any rule of law or with this Indenture,
and
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 513.
Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series may on behalf of the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any Security of such
series, or
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(2) in respect of a covenant or provision hereof which under Article Nine cannot be
modified or amended without the consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 514.
Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such suit, and may
assess costs, including reasonable attorneys’ fees and expenses (whether incurred before trial, at
trial, on appeal or in any bankruptcy or arbitration or other administrative proceeding), against
any such party litigant, in the manner and to the extent provided in the Trust Indenture Act;
provided
that neither this Section nor the Trust Indenture Act shall be deemed to authorize any
court to require such an undertaking or to make such an assessment in any suit instituted by the
Company.
SECTION 515.
Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein granted to the Trustee,
but will suffer and permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
The Trustee
SECTION 601.
Certain Duties and Responsibilities.
(1) Except during the continuance of an Event of Default,
(a) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(b) in the absence of bad faith on its part, the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically
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required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(2) In case an Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same degree of care
and skill in their exercise, as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
(3) No provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that,
(a) this Subsection shall not be construed to limit the effect of Subsection (a)
of this Section;
(b) the Trustee shall not be liable for any error of judgment made in good faith
by a Responsible Officer, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken or omitted
to be taken by it in good faith in accordance with the direction of the Holders of a
majority in principal amount of the Outstanding Securities of any series, determined
as provided in Sections 101, 104 and 512, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture with respect to the
Securities of such series; and
(d) no provision of this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, unless the
Trustee shall have received adequate security or indemnity in its opinion against the
potential costs and liabilities which may be incurred by it relating thereto.
(4) Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section.
SECTION 602.
Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, the Trustee shall give
the Holders of Securities of such series notice of such default as and to the extent provided by
the Trust Indenture Act;
provided, however,
that in the case of any default of the character
specified in Section 501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term “default” means any event which is, or
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after notice or lapse of time or both would become, an Event of Default with respect to
Securities of such series.
SECTION 603.
Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may conclusively rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order, and any resolution of the Board of Directors
shall be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem it desirable
that a matter be proved or established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers’ Certificate;
(4) the Trustee may consult with counsel and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders pursuant to
this Indenture, unless such Holders shall have offered to the Trustee security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred
by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper
or document, but the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the sole cost of the Company and
shall incur no liability or additional liability of any kind by reason of such inquiry or
investigation;
(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder;
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(8) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken
by it in good faith and reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
(9) 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;
(10) the Trustee shall not be deemed to have notice of any Default 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 a default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Securities and this Indenture and
in the absence of receipt of such notice or actual knowledge, the Trustee may conclusively
assume that there is no Default or Event of Default;
(11) 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; and
(12) the Trustee may request that the Company deliver a certificate setting forth the
names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture.
SECTION 604.
Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605.
May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other agent.
SECTION 606.
Money Held in Trust.
Money 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
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interest on any money received by it hereunder except as otherwise agreed with the Company.
SECTION 607.
Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as the Company and the
Trustee shall from time to time agree in writing for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee and their agents for, and
to hold them harmless against, any and all loss, damage, claims, liability or expense,
including taxes (other than taxes based upon, measured by or determined by the income of the
Trustee), arising out of or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself against any claim
(whether asserted by the Company, or any Holder or any other Person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder, or in connection
with enforcing the provisions of this Section, except to the extent that such loss, damage,
claim, liability or expense is due to its own negligence or bad faith.
The Trustee shall have a lien prior to the Securities as to all property and funds held by it
hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 607, except
with respect to funds held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 501(6) or Section 501(7), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended to constitute expenses
of administration under any applicable Federal or state bankruptcy, insolvency or other similar
law.
The provisions of this Section shall survive the termination of this Indenture.
SECTION 608.
Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
To the extent permitted by such Act, the Trustee shall not be deemed
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to have a conflicting interest by virtue of being a trustee under this Indenture with respect
to Securities of more than one series or a trustee under the indentures for the Company’s 1.25%
Convertible Senior Notes due 2014, 1.625% Convertible Senior Notes due 2017 or 3.00% Convertible
Senior Notes due 2012.
SECTION 609.
Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect to the
Securities of each series, which may be Trustee hereunder for Securities of one or more other
series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act
as such and has a combined capital and surplus of at least $50,000,000. If any such Person
publishes reports of condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee with respect to the Securities of any series shall cease
to be eligible in accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 610.
Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may at the Company’s expense
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of any series by Act of
the Holders of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign
after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed
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or any public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the Trustee with respect
to all Securities, or (B) subject to Section 514, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Securities of one or more series,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and
that at any time there shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 611. If, within 90 days after
such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 611, become the successor
Trustee with respect to the Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, the Trustee being removed, at the Company’s expense, or any Holder
who has been a bona fide Holder of a Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of the Trustee with respect
to the Securities of any series and each appointment of a successor Trustee with respect to the
Securities of any series to all Holders of Securities of such series in the manner provided in
Section 106. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 611.
Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor Trustee, such
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retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall 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, it being
understood that nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee hereunder with respect
to the Securities of that or those series to which the appointment of such successor Trustee
relates.
Upon request of any such successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article.
SECTION 612.
Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the
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part of any of the parties hereto. In
case any Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 613.
Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or any other obligor
upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any such other obligor).
SECTION 614.
Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia, authorized under such laws
to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to the requirements of
said supervising or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate
agency or corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and to the Company. The Trustee may at any time terminate the agency of
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an Authenticating Agent by
giving written notice thereof to such Authenticating Agent
and to the Company. Upon receiving such a notice of resignation or upon such a termination, or
in case at any time such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be
acceptable to the Company and shall give notice of such appointment in the manner provided in
Section 106 to all Holders of Securities of the series with respect to which such Authenticating
Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall
be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section, and the Trustee shall be entitled to be
reimbursed for such payments, subject to the provisions of Section 607.
If an appointment with respect to one or more series is made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of
authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK
MELLON TRUST COMPANY, N.A.,
As Trustee
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Dated:
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By
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As Authenticating Agent
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By
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Authorized Signatory
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SECTION 615.
Trustee’s Application for Instructions from the Company.
Any application by the Trustee for written instructions from the Company may, at the option of
the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under
this Indenture and the date on and/or after which such action shall be taken or such omission shall
be effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date specified in such
application (which date shall not be less than three Business Days after the date any officer of
the Company actually receives such application, unless any such officer shall have consented in
writing to any earlier date) unless prior to taking any such action (or the effective date in the
case of an omission), the Trustee shall have received written instructions in response to such
application specifying the action to be taken or omitted.
ARTICLE SEVEN
Holders’ Lists and Reports by Trustee and Company
SECTION 701.
Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than
and
in each year, a
list, in such form as the Trustee may reasonably require, of the names and addresses of the
Holders of Securities of each series as of the preceding
or
, as
the case may be, and
(2) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
excluding
from any such list names and addresses received by the Trustee in its capacity as
Security Registrar.
SECTION 702.
Preservation of Information; Communications to Holders.
The Trustee shall 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 701 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 701
upon receipt of a new list so furnished.
The rights of 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,
shall be as provided by the Trust Indenture Act.
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
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either of them shall be held accountable by reason of any disclosure of information as to
names and addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 703.
Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the
Trustee shall, within sixty days after each May 15 following the date of this Indenture deliver to
Holders a brief report, dated as of such May 15, which complies with the provisions of such
Section 313(a).
A copy of each such report shall, at the time of such transmission to Holders, be filed by the
Trustee with each stock exchange upon which any Securities are listed, with the Commission and with
the Company. The Company will notify the Trustee when any Securities are listed on any stock
exchange or of any delisting thereof.
SECTION 704.
Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to Holders, such
information, documents and other reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner provided pursuant to such Act;
provided
that any such information, documents or reports required to be filed with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act shall be filed with
the Trustee within 30 calendar days
after the same is so required to be filed with the Commission. To the extent the Company has filed
such information with the Commission through the Commission’s EDGAR system, or any successor system
employed by the Commission, the Company shall be deemed to have complied with this Section 704.
The Trustee shall have no duty to search for or obtain any electronic or other filings that the
Company makes with the SEC, regardless of whether such filings are periodic, supplemental or
otherwise.
Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers’ Certificates).
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801.
Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or convey, transfer or
lease its properties and assets substantially as an entirety to any Person, and the Company shall
not permit any Person to consolidate with or merge into
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the Company or convey, transfer or lease its properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another Person or convey,
transfer or lease its properties and assets substantially as an entirety to any Person, the
Person formed by such consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust, shall be organized
and validly existing under the laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of and any premium and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction and treating any indebtedness
which becomes an obligation of the Company or any Subsidiary as a result of such transaction as
having been incurred by the Company or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such conveyance, transfer or
lease, properties or assets of the Company would become subject to a mortgage, pledge, lien,
security interest or other encumbrance which would not be permitted by this Indenture, the
Company or such successor Person, as the case may be, shall take such steps as shall be
necessary effectively to secure the Securities equally and ratably with (or prior to) all
indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction, such supplemental
indenture comply with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
In the case of a Subsidiary of the Company that merges with and into the Company, the Company
will not be required to comply with Section 401(2) or 401(4).
SECTION 802.
Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into, any other Person or
any conveyance, transfer or lease of the properties and assets of the Company substantially as an
entirety in accordance with Section 801, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as the Company herein,
and thereafter,
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except in the case of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
SECTION 901.
Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the assumption by any
such successor of the covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders of all or any
series of Securities (and if such covenants are to be for the benefit of less than all series
of Securities, stating that such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the Holders of all or any
series of Securities (and if such additional Events of Default are to be for the benefit of
less than all series of Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or to permit or facilitate
the issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this Indenture in respect of
one or more series of Securities,
provided
that any such addition, change or elimination
(A) shall neither (i) apply to any Security of any series created prior to the execution of
such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the
rights of the Holder of any such Security with respect to such provision or (B) shall become
effective only when there is no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as permitted by
Sections 201 and 301; or
(8) 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
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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 611; or
(9) to add guarantees with respect to the Securities;
(10) comply with the provisions of any clearing agency, clearing corporation or clearing
system, the Trustee or the Registrar with respect to the provisions of this Indenture or the
Securities relating to transfers and exchanges of Securities;
(11) to comply with any requirement of the Commission in connection with the qualification
of this Indenture under the Trust Indenture Act;
(12) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture,
provided
that such action
pursuant to this Clause (12) shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
SECTION 902.
Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture;
provided, however,
that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of principal of or
interest on, any Security, or reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security or any other Security which would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or
change any Place of Payment where, or the coin or currency in which, any Security or any
premium or interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding Securities of any series,
the consent of whose Holders is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided for in this Indenture,
or
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(3) modify any of the provisions of this Section, Section 513 or Section 1011, except to
increase any such percentage or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each Outstanding Security
affected thereby;
provided, however,
that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to “the Trustee” and
concomitant changes in this Section and Section 1011, or the deletion of this proviso, in
accordance with the requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.
SECTION 903.
Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise.
SECTION 904.
Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
SECTION 905.
Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
SECTION 906.
Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such
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supplemental indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
SECTION 1001.
Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of and any premium and interest on the Securities of that
series in accordance with the terms of the Securities and this Indenture.
SECTION 1002.
Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations;
provided, however,
that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
SECTION 1003.
Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any series of
Securities, it will, prior to 10:00 a.m. (local time at the Place of Payment) on or before each due
date of the principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal and any premium and interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, prior to each due date of the principal of or any premium or interest on any Securities of
that series, deposit with a Paying Agent a sum sufficient to pay such
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amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to
act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the Securities of that series)
in the making of any payment in respect of the Securities of that series, upon the written request
of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or any premium or interest on any Security of any series
and remaining unclaimed for two years after such principal, premium or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease;
provided, however,
that the Trustee or such Paying Agent, before
being required to make any such repayment, may at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published on each Business Day
and of general circulation in New York, New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004.
Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date hereof, an Officers’ Certificate, stating whether or not to the
best knowledge of the signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they may have knowledge.
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SECTION 1005.
Existence.
Subject to Article Eight, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence, rights (charter and statutory) and
franchises;
provided, however,
that the Company shall not be required to preserve any such right or
franchise if the Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1006.
Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each calendar year a written
notice specifying the amount of original issue discount (including daily rates and accrual periods)
accrued on Outstanding Securities as of the end of such year.
SECTION 1007.
Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company
may be necessary so that the business carried on in connection therewith may be properly and
advantageously conducted at all times;
provided, however,
that nothing in this Section shall
prevent the Company from discontinuing the operation or maintenance of any of such properties if
such discontinuance is, in the judgment of the Company, desirable in the conduct of its business or
the business of any Subsidiary and not disadvantageous in any material respect to the Holders.
SECTION 1008.
Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon the
Company or any Subsidiary or upon the income, profits or property of the Company or any Subsidiary,
and (2) all lawful claims for labor, materials and supplies which, if unpaid, might by law become a
lien upon the property of the Company or any Subsidiary;
provided, however,
that the Company shall
not be required to pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in good faith by
appropriate proceedings. Limitation on Liens.
SECTION 1009.
Limitation on Liens.
The Company will not itself, and will not permit any Restricted Subsidiary to, incur, issue,
assume or guarantee any indebtedness for money borrowed or any other indebtedness evidenced by
notes, bonds, debentures or other similar evidences of indebtedness for money borrowed (hereinafter
in this Section and in Section 1011 called “Debt”) secured by pledge of, or mortgage, deed of trust
or other lien on, any Principal Property owned by the Company or any Restricted Subsidiary, or any
shares of stock or
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other ownership interests or Debt of any Restricted Subsidiary held by the Company or any
Restricted Subsidiary (such pledges, mortgages, deeds of trust and other liens being hereinafter in
this Section and in Section 1011 called “Mortgage” or “Mortgages”), without effectively providing
that the Securities of all series (together with, if the Company shall so determine, any other Debt
of the Company or such Restricted Subsidiary then existing or thereafter created which is not
subordinate to the Securities) shall be secured equally and ratably with (or prior to) such secured
Debt, so long as such secured Debt shall be so secured, unless, after giving effect thereto, the
aggregate principal amount of all such secured Debt which would otherwise be prohibited, plus all
Attributable Debt of the Company and its Restricted Subsidiaries in respect of sale and leaseback
transactions (as defined in Section 1010) which would otherwise be prohibited by Section 1010 would
not exceed the sum of 10% of Consolidated Net Tangible Assets; provided, that this Section shall
not apply to, and there shall be excluded from secured Debt in any computation under this Section,
Debt secured by:
(1) Mortgages on property of, or on any shares of stock or other ownership interests or
Debt of, any corporation or any other entity existing at the time such corporation or entity
becomes a Restricted Subsidiary;
(2) Mortgages to secure indebtedness of any Restricted Subsidiary to the Company or to
another Restricted Subsidiary;
(3) Mortgages for taxes, assessments or governmental charges or levies in each case (i)
not then due and delinquent or (ii) the validity of which is being contested in good faith by
appropriate proceedings, and materialmen’s, mechanics’, carriers’, workmen’s, repairmen’s,
landlords’ or other like Mortgages, or deposits to obtain the release of such Mortgages;
(4) Mortgages arising under an order of attachment or distraint or similar legal process
so long as the execution or enforcement thereof is effectively stayed and the claims secured
thereby are being contested in good faith;
(5) Mortgages to secure public or statutory obligations or to secure payment of workmen’s
compensation or to secure performance in connection with tenders, leases of real property, bids
or contracts or to secure (or in lieu of) surety or appeal bonds and Mortgages made in the
ordinary course of business for similar purposes;
(6) Mortgages in favor of the United States of America or any State thereof, or any
department, agency or instrumentality or political subdivision of the United States of America
or any State thereof, or in favor of any other country, or any political subdivision thereof,
to secure partial, progress, advance or other payments pursuant to any contract or statute
(including Debt of the Pollution Control or Industrial Revenue Bond type) or to secure any
indebtedness incurred for the purpose of financing all or any part of the purchase price or the
cost of construction of the property subject to such Mortgages;
(7) Mortgages on property (including any lease which should be capitalized on the lessee’s
balance sheet in accordance with generally accepted accounting principles), shares of stock or
other ownership interests or Debt existing at the time of
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acquisition thereof (including acquisition through merger or consolidation or through
purchase or transfer of the properties of a corporation or any other entity as an entirety or
substantially as an entirety) or to secure the payment of all or any part of the purchase price
or construction cost or improvement cost thereof or to secure any Debt incurred prior to, at
the time of, or within one year after, the acquisition of such property or shares or other
ownership interests or Debt or the completion of any such construction (including any
improvements on an existing property) or the commencement of commercial operation of such
property, whichever is later, for the purpose of financing all or any part of the purchase
price or construction cost thereof;
(8) Mortgages existing at the date of this Indenture; and
(9) Any extension, renewal or replacement (or successive extensions, renewals or
replacements), as a whole or in part, of any Mortgage referred to in the foregoing clauses (1)
to (8), inclusive;
provided
, that (i) such extension, renewal or replacement Mortgage shall be
limited to all or a part of the same property, shares of stock or Debt that secured the
Mortgage extended, renewed or replaced (plus improvements on such property) and (ii) the Debt
secured by such Mortgage at such time is not increased;
provided further
, that these restrictions shall not apply to (i) any gold-based loan or forward
sale arrangement, and (ii) Mortgage upon property owned or leased by the Company or any Restricted
Subsidiary or in which the Company or any Restricted Subsidiary owns an interest to secure the
Company’s or a Restricted Subsidiary’s proportionate share of any payments required to be made to
any Person incurring the expense of developing, exploring, or conducting operations for the
recovery, processing or sale of the mineral resources of such owned or leased property and any such
loan, arrangement or payment referred to in clauses (i) and (ii) of this proviso shall not be
deemed to constitute secured Debt and, shall not be included in any computation under these
restrictions.
SECTION 1010.
Limitation on Sales and Leasebacks.
The Company will not itself, and it will not permit any Restricted Subsidiary to, enter into
any arrangement with any bank, insurance company or other lender or investor (not including the
Company or any Restricted Subsidiary) or to which any such lender or investor is a party, providing
for the leasing by the Company or any such Restricted Subsidiary for a period, including renewals,
in excess of three years, of any Principal Property owned by the Company or such Restricted
Subsidiary which has been or is to be sold or transferred more than 270 days after the acquisition
thereof or after the completion of construction and commencement of full operation thereof, by the
Company or any such Restricted Subsidiary to such lender or investor or to any person to whom funds
have been or are to be advanced by such lender or investor on the security of such Principal
Property (herein referred to as a “sale and leaseback transaction”) unless either:
(1) the Company or such Restricted Subsidiary could create Debt secured by a Mortgage on
the Principal Property to be leased back in an amount equal to the Attributable Debt with
respect to such sale and leaseback transaction without equally and ratably securing the
Securities of all series pursuant to Section 1009, or
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(2) the Company within 180 days after the sale or transfer shall have been made by the
Company or by any such Restricted Subsidiary, applies an amount equal to the greater of (i) the
net proceeds of the sale of the Principal Property sold and leased back pursuant to such
arrangement or (ii) the fair market value of the Principal Property so sold and leased back at
the time of entering into such arrangement (as determined by any two of the following: the
chairman, the president, the executive vice president, any senior vice president, the
treasurer, the controller or the secretary of the Company) to (x) the purchase of property,
facilities or equipment (other than the property, facilities or equipment involved in such
sale) having a value at least equal to the net proceeds of such sale or (y) the retirement of
Funded Debt of the Company or any Restricted Subsidiary;
provided
, that the amount required to
be applied to the retirement of Funded Debt of the Company shall be reduced by (i) the
principal amount of any Securities of any series (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal amount as may be due and
payable with respect to such series pursuant to a declaration in accordance with Section 502 or
if the Securities of any series provide that an amount other than the face thereof will or may
be payable upon the maturity thereof or a declaration of acceleration of the maturity thereof,
such amount as may be due and payable with respect to such securities pursuant to a declaration
in accordance with Section 502.) delivered within 180 days after such sale or transfer to the
Trustee for retirement and cancellation, and (ii) the principal amount of Funded Debt, other
than the Securities of any series, voluntarily retired by the Company within 180 days after
such sale or transfer. Notwithstanding the foregoing, no retirement referred to in this clause
(b) may be effected by payment at maturity or pursuant to any mandatory sinking fund payment or
any mandatory prepayment provision.
SECTION 1011.
Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities of such series,
the Company may, with respect to the Securities of any series, omit in any particular instance to
comply with any term, provision or condition set forth in any covenant provided pursuant to
Section 301(18), 901(2) or 901(7) for the benefit of the Holders of such series if before the time
for such compliance the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall remain in full
force and effect.
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ARTICLE ELEVEN
Redemption of Securities
SECTION 1101.
Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 301
for such Securities) in accordance with this Article.
SECTION 1102.
Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by a Board Resolution
or in another manner specified as contemplated by Section 301 for such Securities. In case of any
redemption at the election of the Company of less than all the Securities of any series (including
any such redemption affecting only a single Security), the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the
case of any redemption of Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish
the Trustee with an Officers’ Certificate evidencing compliance with such restriction.
SECTION 1103.
Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all the Securities of
such series and of a specified tenor are to be redeemed or unless such redemption affects only a
single Security), the particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not
previously called for redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of a portion of the principal amount of any
Security of such series,
provided
that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all the Securities of such series and of a
specified tenor are to be redeemed (unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor
not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption as aforesaid and, in case of any Securities selected for partial redemption as
aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption
affecting only a single Security, whether such Security is to be redeemed
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in whole or in part. In the case of any such redemption in part, the unredeemed portion of the
principal amount of the Security shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 1104.
Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at his address appearing in the Security Register.
All notices of redemption shall include the CUSIP number and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series consisting of more than a
single Security are to be redeemed, the identification (and, in the case of partial redemption
of any such Securities, the principal amounts) of the particular Securities to be redeemed and,
if less than all the Outstanding Securities of any series consisting of a single Security are
to be redeemed, the principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and payable upon each
such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on
and after said date,
(5) the place or places where each such Security is to be surrendered for payment of the
Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election 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 and shall be irrevocable.
SECTION 1105.
Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
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SECTION 1106.
Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date;
provided, however,
that,
unless otherwise specified as contemplated by Section 301, installments of interest whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security.
SECTION 1107.
Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
ARTICLE TWELVE
Sinking Funds
SECTION 1201.
Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities of any series except as otherwise specified as contemplated by Section 301 for such
Securities.
The minimum amount of any sinking fund payment provided for by the terms of any Securities is
herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum
amount provided for by the terms of such Securities is herein referred to as an “optional sinking
fund payment”. If provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities as provided for by the terms of such Securities.
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SECTION 1202.
Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to any Securities of such series required to be made pursuant to the terms of such
Securities as and to the extent provided for by the terms of such Securities;
provided
that the
Securities to be so credited have not been previously so credited. The Securities to be so credited
shall be received and credited for such purpose by the Trustee at the Redemption Price, as
specified in the Securities so to be redeemed, for redemption through operation of the sinking fund
and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 1203.
Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any Securities, the Company
will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing
sinking fund payment for such Securities pursuant to the terms of such Securities, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which
is to be satisfied by delivering and crediting Securities pursuant to Section 1202 and will also
deliver to the Trustee any Securities to be so delivered. Not less than 30 days prior to each such
sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
SECTION 1301.
Company’s Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302 or Section 1303 applied
to any Securities or any series of Securities, as the case may be, designated pursuant to
Section 301 as being defeasible pursuant to such Section 1302 or 1303, in accordance with any
applicable requirements provided pursuant to Section 301 and upon compliance with the conditions
set forth below in this Article. Any such election shall be evidenced by a Board Resolution or in
another manner specified as contemplated by Section 301 for such Securities.
SECTION 1302.
Defeasance and Discharge.
Upon the Company’s exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, the Company shall be deemed to have
been discharged from its obligations with respect to such Securities as
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provided in this Section on and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), subject to the following which shall survive
until otherwise terminated or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1304 and as more fully set forth in such
Section, payments in respect of the principal of and any premium and interest on such Securities
when payments are due, (2) the Company’s obligations with respect to such Securities under
Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (4) this Article. Subject to compliance with this Article, the Company may
exercise its option (if any) to have this Section applied to any Securities notwithstanding the
prior exercise of its option (if any) to have Section 1303 applied to such Securities.
SECTION 1303.
Covenant Defeasance.
Upon the Company’s exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, (1) the Company shall be released from
its obligations under Section 801(3), Sections 1007 through 1010, inclusive, and any covenants
provided pursuant to Section 301(18), 901(2) or 901(7) for the benefit of the Holders of such
Securities and (2) the occurrence of any event specified in Sections 501(4) (with respect to any of
Section 801(3), Sections 1007 through 1010, inclusive, and any such covenants provided pursuant to
Section 301(18), 901(2) or 901(7)), 501(5) and 501(8) shall be deemed not to be or result in an
Event of Default, in each case with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 1304 are satisfied (hereinafter called “Covenant
Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section (to the extent so specified in the
case of Section 501(4)), whether directly or indirectly by reason of any reference elsewhere herein
to any such Section or by reason of any reference in any such Section to any other provision herein
or in any other document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 1304.
Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302 or Section 1303 to
any Securities or any series of Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee which satisfies the requirements contemplated by Section 609 and
agrees to comply with the provisions of this Article applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefits of the Holders of such Securities, (A) money in an amount, or
(B) U.S. Government Obligations which through the scheduled payment of principal and interest
in respect thereof in
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accordance with their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (C) a combination thereof, in each case sufficient, in the
opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the
principal of and any premium and interest on such Securities on the respective Stated
Maturities, in accordance with the terms of this Indenture and such Securities. As used herein,
“U.S. Government Obligation” means (x) any security which is (i) a direct obligation of the
United States of America for the payment of which the full faith and credit of the United
States of America is pledged or (ii) an obligation of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United States of
America, which, in either case (i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2)
of the Securities Act) as custodian with respect to any U.S. Government Obligation which is
specified in Clause (x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal of or interest on any
U.S. Government Obligation which is so specified and held,
provided
that (except as required by
law) such custodian is not authorized to make any deduction from the amount payable to the
holder of such depositary receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of principal or interest evidenced by such
depositary receipt.
(2) In the event of an election to have Section 1302 apply to any Securities or any series
of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion
of Counsel stating that (A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this instrument, there has been a
change in the applicable Federal income tax law, in either case (A) or (B) to the effect that,
and based thereon such opinion shall confirm that, the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance
and discharge to be effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as would be the case if
such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 1303 apply to any Securities or any series
of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of such Securities will not recognize gain or loss
for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be
effected with respect to such Securities and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers’ Certificate to the effect
that neither such Securities nor any other Securities of the same series, if then listed on any
securities exchange, will be delisted as a result of such deposit.
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(5) No event which is, or after notice or lapse of time or both would become, an Event of
Default with respect to such Securities or any other Securities shall have occurred and be
continuing at the time of such deposit or, with regard to any such event specified in
Sections 501(6) and (7), at any time on or prior to the 90th day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied until after such 90th
day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are
in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of,
or constitute a default under, any other agreement or instrument to which the Company is a
party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such
deposit constituting an investment company within the meaning of the Investment Company Act
unless such trust shall be registered under such Act or exempt from registration thereunder.
(9) The Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance
or Covenant Defeasance have been complied with.
SECTION 1305.
Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous
Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section and Section 1306, the Trustee and any such other trustee are
referred to collectively as the “Trustee”) pursuant to Section 1304 in respect of any Securities
shall be held in trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders
of such Securities, of all sums due and to become due thereon in respect of principal and any
premium and interest, but money so held in trust need not be segregated from other funds except to
the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 1304 or the
principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon Company Request any money or U.S. Government Obligations held by
it as provided in Section 1304 with respect to any Securities which, in the opinion of a nationally
recognized firm of independent public
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accountants expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to effect the Defeasance
or Covenant Defeasance, as the case may be, with respect to such Securities.
SECTION 1306.
Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article with respect to any Securities by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, then the
obligations under this Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as though no deposit had
occurred pursuant to this Article with respect to such Securities, until such time as the Trustee
or Paying Agent is permitted to apply all money held in trust pursuant to Section 1305 with respect
to such Securities in accordance with this Article;
provided, however,
that if the Company makes
any payment of principal of or any premium or interest on any such Security following such
reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the
Holders of such Securities to receive such payment from the money so held in trust.
ARTICLE FOURTEEN
Subsidiary Guarantee
SECTION 1401.
Subsidiary Guarantee.
The Subsidiary Guarantor hereby fully and unconditionally guarantees, on an unsubordinated
basis, as primary obligor and not merely as surety, to each Holder of the Securities and the
Trustee the full and punctual payment when due, whether at maturity, by acceleration or otherwise,
of the principal of and interest, on the Securities and all other obligations and liabilities of
the Company under this Indenture (including without limitation interest accruing after the filing
of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Company or any Subsidiary Guarantor whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) (all the foregoing being
hereinafter collectively called the “Obligations”). The Subsidiary Guarantor further agrees (to the
extent permitted by law) that the Obligations may be extended or renewed, in whole or in part,
without notice or further assent from it, and that it will remain bound under this Article 14
notwithstanding any extension or renewal of any Obligation.
The Subsidiary Guarantor waives presentation to, demand of payment from and protest to the
Company of any of the Obligations and also waives notice of protest for nonpayment. The Subsidiary
Guarantor waives notice of any Default under the Securities or the Obligations. The obligations of
the Subsidiary Guarantor hereunder shall not be affected by (a) the failure of any Holder to assert
any claim or demand or to enforce any right or remedy against the Company or any other Person under
this Indenture, the Securities or any other agreement or otherwise; (b) any extension or renewal of
any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or
provisions of this Indenture, the Securities or any other agreement; (d) the release of any
-68-
security held by any Holder or the Trustee for the Obligations or any of them; or (e) any
change in the ownership of the Company.
The Subsidiary Guarantor further agrees that its Subsidiary Guarantee herein constitutes a
Guarantee of payment when due (and not a Guarantee of collection) and waives any right to require
that any resort be had by any Holder to any security held for payment of the Obligations.
The obligations of the Subsidiary Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason (other than payment of the Obligations in full
or pursuant to Sections 1402 and 1403 hereof), including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense of setoff, counterclaim,
recoupment or termination whatsoever (other than payment of the Obligations in full or pursuant to
Sections 1402 and 1403 hereof) or by reason of the invalidity, illegality or unenforceability of
the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of
the Subsidiary Guarantor herein shall not be (to the extent permitted by law) discharged or
impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to
enforce any remedy under this Indenture, the Securities or any other agreement, by any waiver or
modification of any thereof, by any default, failure or delay, willful or otherwise, in the
performance of the Obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of the Subsidiary
Guarantor or would otherwise operate as a discharge of the Subsidiary Guarantor as a matter of law
or equity.
The Subsidiary Guarantor agrees that its Subsidiary Guarantee herein shall remain in full
force and effect until payment in full of all the Obligations or until such Subsidiary Guarantor is
released from its Subsidiary Guarantee upon the merger or the sale of all the common stock or
assets of the Subsidiary Guarantor in compliance with Section 1402, or upon its release from the
Subsidiary Guarantee pursuant to Section 1403. The Subsidiary Guarantor further agrees that unless
its Subsidiary Guarantee has been released pursuant to Section 1402 or Section 1403, its Subsidiary
Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of principal of or interest, on any of the Obligations is
rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the
Company or otherwise.
In furtherance of the foregoing and not in limitation of any other right which any Holder has
at law or in equity against the Subsidiary Guarantor by virtue hereof, upon the failure of the
Company to pay any of the Obligations when and as the same shall become due, whether at maturity,
by acceleration or otherwise, the Subsidiary Guarantor hereby promises to and will, upon receipt of
written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders an
amount equal to the sum of (i) the unpaid amount of such Obligations then due and owing and (ii)
without duplication of any amounts included in the preceding clause (i), accrued and unpaid
interest (including any Additional Interest) on such Obligations then due and owing (but only to
the extent not prohibited by law).
-69-
The Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantor, on the one
hand, and the Holders, on the other hand, (x) the maturity of the Obligations guaranteed hereby may
be accelerated as provided in this Indenture for the purposes of its Subsidiary Guarantee herein,
notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect
of the Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration
of such Obligations, such Obligations (whether or not due and payable) shall forthwith become due
and payable by the Subsidiary Guarantor for the purposes of this Subsidiary Guarantee.
The Subsidiary Guarantor also agrees to pay any and all reasonable costs and expenses
(including reasonable attorneys’ fees and expenses) incurred by the Trustee in enforcing any rights
under this Section 1401.
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SECTION 1402.
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Limitation on Liability; Termination, Release and Discharge Upon Merger or
Consolidation or Sale of All or Substantially All Assets of the Subsidiary Guarantor;
Termination on Conversion.
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(1) The obligations of the Subsidiary Guarantor hereunder will be limited to the maximum
amount as will, after giving effect to all other contingent and fixed liabilities of such
Subsidiary Guarantor (including, without limitation, any guarantees of other indebtedness of
the Company), result in the obligations of the Subsidiary Guarantor under its Subsidiary
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or
state law and not otherwise being void or voidable under any similar laws affecting the rights
of creditors generally.
(2) Subject to Section 801, the Subsidiary Guarantor may consolidate with or merge into or
sell all or substantially all of its assets to any Person (including, without limitation, the
Company) without limitation. Notwithstanding the foregoing, the Subsidiary Guarantor shall not
merge or consolidate with any Affiliate of the Company, or sell or otherwise dispose of all or
substantially all of the Subsidiary Guarantor’s assets, in one transaction or a series of
related transactions, to any Affiliate of the Company, unless:
(1) the Person formed by or surviving any such consolidation or merger (if not
the Company or the Subsidiary Guarantor) or to whom such sale is made (if not the
Company) (i) is a corporation, partnership, trust or limited liability company
organized and existing under the laws of the United States of America, any State
thereof or the District of Columbia and (ii) assumes all the obligations of the
Subsidiary Guarantor under the Subsidiary Guarantee pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the Trustee; and
(2) the Company delivers to the Trustee an Officers’ Certificate and an Opinion
of Counsel addressed to the Trustee stating that such consolidation, merger or
transfer and such supplemental indenture comply with this Indenture.
The preceding clauses (A) and (B) shall not apply to any merger or consolidation of the Subsidiary
Guarantor with the Company or with any Person other than an Affiliate of the
-70-
Company, or to any sale or other disposition of all or substantially all of the assets of the
Subsidiary Guarantor, in one transaction or a series of related transactions, to the Company or to
any Person other than an Affiliate of the Company.
The Subsidiary Guarantor will be deemed released from all of its obligations under this
Indenture and its Subsidiary Guarantee, and its Subsidiary Guarantee will terminate, without any
action required on the part of the Trustee or any Holder of the Securities, upon the sale or other
disposition of a majority of the total voting power of the capital stock of or other ownership
interests in the Subsidiary Guarantor entitled to vote generally in the election of directors (by
merger, consolidation, the sale or other disposition of the capital stock of or other ownership
interests in the Subsidiary Guarantor, or otherwise), in one transaction or a series of related
transactions, to any Person other than the Company or an Affiliate of the Company.
The Subsidiary Guarantor will be deemed released from all of its obligations under this
Indenture and its Subsidiary Guarantee, and its Subsidiary Guarantee will terminate, without any
action required on the part of the trustee or any Holder of the Securities, upon the sale or other
disposition of all or substantially all of its assets to any Person other than the Company or an
Affiliate of the Company.
(3) Each Subsidiary Guarantor will be deemed released from all its obligations under this
Indenture and its Subsidiary Guarantee and such Subsidiary Guarantee will terminate upon the
discharge of the Securities pursuant to the provisions of Article 4 hereof. At the request of
the Company, the Trustee shall execute and deliver any documents, instructions or instruments
evidencing the consent of the Holders to any release in accordance with this Article 14.
SECTION 1403.
Release of the Subsidiary Guarantee.
The Subsidiary Guarantor will be deemed released from all of its obligations under this
Indenture and its Subsidiary Guarantee, and its Subsidiary Guarantee will terminate, without any
action required on the part of the Trustee or any Holder of the Securities, upon such time as the
Subsidiary Guarantor ceases to guarantee the indebtedness of the Company other than indebtedness
not exceeding $75,000,000 in the aggregate (it being understood that indebtedness of the Company
that is guaranteed by the Subsidiary Guarantor and that also provides that the guarantee of the
Subsidiary Guarantor under such indebtedness shall be released and relieved upon such time as the
Subsidiary Guarantor ceases to guaranty any of the Company’s indebtedness other than indebtedness
not exceeding $75,000,000 or more in the aggregate shall not be considered in calculating the
amount of indebtedness hereunder). Accordingly, if the lenders under the Company’s indebtedness in
excess of $75,000,000 in the aggregate that is guaranteed by the Subsidiary Guarantor agree to
release the Subsidiary Guarantor from its guarantee of such indebtedness in excess of $75,000,000
in the aggregate, or the Company’s indebtedness in excess of $75,000,000 in the aggregate that is
guaranteed by the Subsidiary Guarantor is repaid in full, the Subsidiary Guarantor will be deemed
released from all of its obligations under this Indenture and its Subsidiary Guarantee, and its
Subsidiary Guarantee will terminate, without any action required on the part of the Trustee or any
Holder of the Securities.
-71-
SECTION 1404.
Waiver of Subrogation.
Notwithstanding any payment or payments made by the Subsidiary Guarantor hereunder, the
Subsidiary Guarantor shall not be entitled to be subrogated to any of the rights of the Trustee or
any Holder against the Company or any collateral security or guarantee or right of offset held by
the Trustee or any Holder for the payment of the Obligations, nor shall any Subsidiary Guarantor
seek or be entitled to seek any contribution or reimbursement from the Company or any other
Subsidiary Guarantor in respect of payments made by such Subsidiary Guarantor hereunder, until all
amounts owing to the Trustee and the Holders by the Company on account of the Obligations are paid
in full. If any amount shall be paid to any Subsidiary Guarantor on account of such subrogation
rights at any time when all of the Obligations shall not have been paid in full, such amount shall
be held by such Subsidiary Guarantor in trust for the Trustee and the Holders, segregated from
other funds of such Subsidiary Guarantor, and shall, forthwith upon receipt by such Subsidiary
Guarantor, be turned over to the Trustee in the exact form received by such Subsidiary Guarantor
(duly indorsed by such Subsidiary Guarantor to the Trustee, if required), to be applied against the
Obligations. Upon the payment in full of the Obligations, the Subsidiary Guarantor will be
subrogated to all rights of Holders of Securities against the Company in respect of any amount paid
by the Subsidiary Guarantor pursuant to the Subsidiary Guarantee.
This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.
-72-
In Witness Whereof
, the parties have caused this Indenture to be duly executed as of
the date first written above.
THE COMPANY
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NEWMONT MINING CORPORATION
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By:
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/s/
Russell D. Ball
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Name:
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Russell D. Ball
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Title:
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Chief Financial Officer
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THE SUBSIDIARY GUARANTOR
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NEWMONT USA LIMITED
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By:
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/s/
Thomas P. Mahoney
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Name:
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Thomas P. Mahoney
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Title:
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Vice President and Treasurer
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THE TRUSTEE
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
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By:
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/s/ Alex Briffett
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Name:
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John (Alex) Briffett
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Title:
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Senior Associate
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-73-
Exhibit 4.2
NEWMONT MINING CORPORATION
and
NEWMONT USA LIMITED
(as the Subsidiary Guarantor)
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of September 18, 2009
to
Indenture dated as of September 18, 2009
$900,000,000 5.125% Senior Notes due 2019
$1,100,000,000 6.250% Senior Notes due 2039
TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS
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SECTION 1.1
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Generally
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1
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SECTION 1.2
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Definition of Certain Terms
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2
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Change of Control
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2
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Change of Control Offer
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3
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Change of Control Payment
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3
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Comparable Treasury Issue
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3
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Comparable Treasury Price
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3
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Continuing Directors
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4
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Independent Investment Banker
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4
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Investment Grade Rating
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4
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Moody’s
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4
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Prospectus Supplement
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4
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Rating Agencies
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4
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Reference Treasury Dealer
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5
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Reference Treasury Dealer Quotations
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5
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S&P
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5
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Substitute Rating Agency
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5
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Substitute Rating Agency
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5
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ARTICLE II
GENERAL TERMS OF THE NOTES
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SECTION 2.1
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Form. The Notes,
the Trustee’s
certificates of
authentication and
the Guaranty shall
be substantially in
the form of Exhibit
A-1 or Exhibit A-2
for the 2019 Notes
and the 2039 Notes,
respectively, to
this First
Supplemental
Indenture, which
are hereby
incorporated into
this First
Supplemental
Indenture. The
terms and
provisions
contained in the
Notes shall
constitute, and are
hereby expressly
made, a part of
this First
Supplemental
Indenture and to
the extent
applicable, the
Company, the
Subsidiary
Guarantor and the
Trustee, by their
execution and
delivery of this
First Supplemental
Indenture,
expressly agree to
such terms and
provisions and to
be bound thereby.
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5
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SECTION 2.2
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Amount and Payment
of Principal and
Interest. (a) In
accordance with the
Company Order
delivered to the
Trustee pursuant to
Section 303 of the
Base Indenture, the
Trustee shall
authenticate and
deliver the 2019
Notes with the
Guaranty affixed
thereto for
original issue on
the date hereof in
the aggregate
principal amount of
$900,000,000. The
principal amount of
each 2019 Note
shall be payable on
October
1, 2019. In accordance with the Company Order delivered to the Trustee
pursuant to Section 303 of the Base Indenture, the Trustee shall authenticate
and deliver the 2039 Notes with the Guaranty affixed thereto for original issue
on the date hereof in the aggregate principal amount of $1,100,000,000. The
principal amount of each 2039 Note shall be payable on October 1, 2039.
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5
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-i-
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Page
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SECTION 2.3
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Denominations
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6
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SECTION 2.4
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Global Securities
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6
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SECTION 2.5
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Payment, Transfer and Exchange
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6
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SECTION 2.6
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Security Registrar and Paying Agent
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7
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SECTION 2.7
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Ranking
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7
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SECTION 2.8
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Trustee’s Right to Refuse Directions in Certain Circumstances
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7
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ARTICLE III
REDEMPTION
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SECTION 3.1
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Redemption. (a) Except as
provided in this Article III,
the Company shall have no
obligation to redeem,
purchase or repay the Notes
pursuant to any mandatory
redemption, sinking fund or
analogous provisions or at
the option of a Holder
thereof.
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7
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SECTION 3.2
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Redemption Procedures
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8
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SECTION 3.3
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Notice of Redemption
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8
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ARTICLE IV
CHANGE OF CONTROL
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SECTION 4.1
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Change of Control
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8
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ARTICLE V
MISCELLANEOUS PROVISIONS
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SECTION 5.1
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Ratification of Base Indenture
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11
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SECTION 5.2
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Trustee Not Responsible for Recitals
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11
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SECTION 5.3
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Table of Contents, Headings, etc.
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11
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SECTION 5.4
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Counterpart Originals
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11
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SECTION 5.5
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Governing Law
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11
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EXHIBIT A-1
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Form of 2019 Note
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A-1-1
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EXHIBIT A-2
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Form of 2039 Note
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A-2-1
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-ii-
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of September 18, 2009 (the “
First Supplemental
Indenture
”), among Newmont Mining Corporation, a Delaware corporation, as issuer (the
“
Company
”), Newmont USA Limited, a Delaware corporation, as Subsidiary Guarantor (the
“
Subsidiary Guarantor
”), and The Bank of New York Mellon Trust Company, N.A., as Trustee
(the “
Trustee
”).
RECITALS:
WHEREAS, the Company has executed and delivered to the Trustee an Indenture, dated as of
September 18, 2009 (the “
Base Indenture
” and as supplemented by this First Supplemental
Indenture, the “
Indenture
”), providing for the issuance by the Company from time to time of
its unsecured senior debentures, notes or other evidences of indebtedness to be issued in one or
more series unlimited as to principal amount (the “
Securities
”);
WHEREAS, the Company has duly authorized and desires to cause to be established pursuant to
the Base Indenture and this First Supplemental Indenture two new series of Securities designated
the “5.125% Senior Notes due 2019” (the “
2019 Notes
”) and the 6.250% Senior Notes due 2039
(the “
2039 Notes
” and, together with the 2019 Notes, the “
Notes
”), the form and
terms of such Notes to be set forth in this First Supplemental Indenture;
WHEREAS, all things necessary to make this First Supplemental Indenture a valid agreement of
the Company, the Subsidiary Guarantor and the Trustee, in accordance with its terms, and a valid
amendment of, and supplement to, the Base Indenture have been done;
NOW, THEREFORE, in consideration of the premises and the purchase and acceptance of the Notes
by the Holders thereof, the Company covenants and agrees with the Trustee, for the equal and
ratable benefit of the Holders, that the Base Indenture is supplemented and amended, to the extent
expressed herein, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1
Generally
. (a) Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings ascribed thereto in the Base Indenture.
(b) The rules of interpretation set forth in the Base Indenture shall be applied hereto as if
set forth in full herein.
SECTION 1.2
Definition of Certain Terms
. For all purposes of this First Supplemental
Indenture, except as otherwise expressly provided or unless the context otherwise requires, the
following terms shall have the following respective meanings:
“
Additional Notes
” has the meaning specified in Section 2.2(b).
“
Change of Control
” means the occurrence of any of the following:
(1) the direct or indirect sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related transactions,
of all or substantially all of the assets of the Company and its Subsidiaries taken as a
whole to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other
than to the Company or one of its Subsidiaries;
(2) the consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any “person” (as that term is used in Section
13(d)(3) of the Exchange Act) (other than a Subsidiary of Newmont) becomes the beneficial
owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly,
of more than 50% of the combined Voting Stock of the Company or other Voting Stock into
which the Company’s Voting Stock is reclassified, consolidated, exchanged or changed
measured by voting power rather than by number of shares;
(3) the Company consolidates with, or merges with, any “person” (as that term is used
in Section 13(d)(3) of the Exchange Act), or any person consolidates with, or merges with
or into, the Company, in any such event pursuant to a transaction in which any of the
outstanding Voting Stock of the Company or such other person is converted into or exchanged
for cash, securities or other property, other than any such transaction where the shares of
the Voting Stock of the Company outstanding immediately prior to such transaction
constitute, or are converted into or exchanged for, a majority of the Voting Stock of the
surviving person or any direct or indirect parent company of the surviving person
immediately after giving effect to such transaction;
(4) the first day on which a majority of the members of the Company’s Board of
Directors are not Continuing Directors; or
(5) the adoption of a plan relating to the liquidation or dissolution of the Company.
Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control
if (1) the Company becomes a direct or indirect wholly-owned subsidiary of a holding company and
(2)(A) the direct or indirect holders of the Voting Stock of such holding company immediately
following that transaction are substantially the same as the holders of the Company’s Voting Stock
immediately prior to that transaction or (B) immediately following that transaction, no “person”
(as that term is used in Section 13(d)(3) of the Exchange Act) (other than a holding company
satisfying
the requirements of this sentence) is the beneficial owner, directly or indirectly, of more
than 50% of the Voting Stock of such holding company.
-2-
“
Change of Control Offer
” means an offer to repurchase Notes pursuant to Section 4.1
hereof.
“
Change of Control Payment
” means, with respect to Notes tendered for repurchase
pursuant to a Change of Control Offer, an amount equal to 101% of the aggregate principal amount of
such Notes plus accrued and unpaid interest thereon, if any, to the date of repurchase.
“
Change of Control Payment Date
” has the meaning specified in Section 4.1.
“
Change of Control Repurchase Event
means, with respect to a Change of Control and
provided the Notes carry an Investment Grade Rating from both Rating Agencies immediately prior to
the first public announcement of the occurrence of the Change of Control or of the intention of the
Company to effect the Change of Control, the Notes are rated below an Investment Grade Rating by
both Rating Agencies on any date within the 60-day period (which period shall be extended so long
as the rating of the Notes is under publicly announced consideration for a possible downgrade by
either of the Rating Agencies) after the earlier of the occurrence of the Change of Control and the
first public announcement of the intention to effect the Change of Control; provided that a Change
of Control Repurchase Event shall be deemed not to have occurred if (A) a Rating Agency that has
reduced its rating of the Notes below an Investment Grade Rating during that period does not
announce or publicly confirm or inform the Trustee in writing at the Company’s request that the
reduction was the result, in whole or in part, of any event or circumstance comprised from or
arising as a result of the applicable Change of Control (regardless of whether that Change of
Control shall then have occurred) or (B) a rating of the Notes by one of the Rating Agencies is
within that period subsequently upgraded to an Investment Grade Rating. For greater certainty, a
Change of Control Repurchase Event will be deemed not to have occurred in connection with any
particular Change of Control unless and until that Change of Control has actually been consummated.
“
Comparable Treasury Issue
” means the United States Treasury security selected by the
Reference Treasury Dealer as having a maturity comparable to the remaining term of the Notes to be
redeemed that would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of those Notes.
“
Comparable Treasury Price
” means, with respect to any Redemption Date, (1) the
average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the
highest and lowest such Reference Treasury Dealer Quotations, or (2) if the Independent Investment
Banker obtains fewer than three such Reference Treasury Dealer Quotations, the average of all
Reference Treasury Dealer Quotations so received, or (3) if only one Reference Treasury Dealer
Quotation is received, such Reference Treasury Dealer Quotation.
-3-
“
Continuing Directors
” means, as of any date of determination, any member of the Board
of Directors of the Company who
(1) was a member of such Board of Directors on the date of the issuance of the Notes;
or
(2) was nominated for election, elected or appointed to such Board of Directors with
the approval of a majority of the Continuing Directors who were members of such Board of
Directors at the time of such nomination, election or appointment (either by a specific
vote or by approval of the Company’s proxy statement in which such member was named as a
nominee for election as a director, without objection to such nomination).
“
Guaranty
” means, with respect to the Notes, the guarantee of cash payments of the
Company by the Subsidiary Guarantor, subject to the terms and limitations of Article 14 of the Base
Indenture and Exhibit A-1 and Exhibit A-2 hereof.
“
Independent Investment Banker
” means Deutsche Bank Securities Inc. or UBS Securities
LLC and their respective successors, or if all of such firms are unwilling or unable to select the
Comparable Treasury Issue, an independent investment banking institution of national standing
appointed by the Company.
“
Interest Payment Date
” has the meaning specified in Section 2.2(c).
“
Investment Grade Rating
” means a rating of Baa3 or better by Moody’s (or its
equivalent under any successor rating categories of Moody’s); a rating of BBB- or better by S&P (or
its equivalent under any successor rating categories of S&P); and the equivalent Investment Grade
Rating from any additional Rating Agency or Rating Agencies selected by the Company as a
replacement Rating Agency or replacement Ratings Agencies.
“
Moody’s
” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation,
and its successors.
“
Prospectus Supplement
” means the prospectus supplement, dated September 15, 2009 to
the prospectus, dated September 15, 2009, relating to the offering by the Company of the Notes.
“
Rating Agency
” means each of Moody’s and S&P;
provided
, that if either
Moody’s or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available
for reasons outside of the Company’s control, the Company may select (as certified by a resolution
of the Company’s Board of
Directors) a “nationally recognized statistical rating organization” within the meaning of
Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, as a replacement agency for Moody’s or S&P, or
both of them, as the case may be.
-4-
“
Reference Treasury Dealer
” means (1) Deutsche Bank Securities Inc. or UBS Securities
LLC (or their respective affiliates which are Primary Treasury Dealers), and their respective
successors; provided, however, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in the United States (a “Primary Treasury Dealer”), the Company shall
substitute therefor another Primary Treasury Dealer; and (2) any other Primary Treasury Dealer(s)
selected by the Company.
“
Reference Treasury Dealer Quotations
” means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average, as determined by the Independent Investment Banker, of
the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Independent Investment Banker by that Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding that
Redemption Date.
“
S&P
” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc., and its successors.
“
Treasury Rate
” means with respect to any Redemption Date, the rate per annum equal to
the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for
the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.
“
Voting Stock
” of any specified “person” (as that term is used in Section 13(d)(3) of
the Exchange Act) as of any date means the capital stock of such person that is at the time
entitled to vote generally in the election of the Board of Directors of such person.
ARTICLE II
GENERAL TERMS OF THE NOTES
SECTION 2.1
Form.
The Notes, the Trustee’s certificates of authentication and the Guaranty
shall be substantially in the form of
Exhibit A-1
or
Exhibit A-2
for the 2019 Notes
and the 2039 Notes, respectively, to this First Supplemental Indenture, which are hereby
incorporated into this First Supplemental Indenture. The terms and provisions contained in the
Notes shall constitute, and are hereby expressly made, a part of this First Supplemental Indenture
and to the extent applicable, the Company, the Subsidiary
Guarantor and the Trustee, by their execution and delivery of this First Supplemental
Indenture, expressly agree to such terms and provisions and to be bound thereby.
SECTION 2.2
Amount and Payment of Principal and Interest.
(a) In accordance with the Company
Order delivered to the Trustee pursuant to Section 303 of the Base Indenture, the Trustee shall
authenticate and deliver the 2019 Notes with the Guaranty affixed thereto for original issue on the
date hereof in the aggregate principal amount of $900,000,000. The principal amount of each 2019
Note shall be payable on October 1, 2019. In accordance with the Company Order delivered to the
Trustee pursuant to Section 303 of the Base Indenture, the Trustee shall authenticate and deliver
the 2039 Notes with the Guaranty affixed thereto for original issue on the date hereof in the
aggregate principal amount of $1,100,000,000. The principal amount of each 2039 Note shall be
payable on October 1, 2039.
-5-
(b) Subject to the terms and conditions contained herein, the Company may from time to time,
without the consent of the existing Holders create and issue additional Notes of either series (the
“
Additional Notes
”) having the same terms and conditions as the Notes of a series in all
respects, except for issue date, issue price and, under some circumstances, the first payment of
interest thereon. Such Additional Notes, at the Company’s determination and in accordance with the
provisions of the Indenture, will be consolidated with and form a single series with the previously
outstanding Notes of the same series for U.S. federal income tax purposes and for all purposes
under the Indenture, including, without limitation, amendments, waivers and redemptions. The
aggregate principal amount of the Additional Notes, if any, of a series shall be unlimited.
(c) The 2019 Notes shall bear interest at 5.125% per year beginning on the date of issuance
until the 2019 Notes are redeemed, paid, or duly provided for. The 2039 Notes shall bear interest
at 6.250% per year beginning on the date of issuance until the 2039 Notes are redeemed, paid, or
duly provided for. Interest shall be paid semi-annually in arrears on April 1 and October 1 of
each year (each an “
Interest Payment Date
”), commencing on April 1, 2010. The regular
record date for interest payable on the Notes shall be the March 15 and September 15, as the case
may be, immediately preceding each Interest Payment Date. Interest will be computed on the basis
of a 360-day year comprised of twelve 30-day months. Any payment of principal or interest required
to be made on a day that is not a Business Day need not be made on such day, but may be made on the
next succeeding Business Day with the same force and effect as if made on such day and no interest
shall accrue as a result of such delayed payment.
SECTION 2.3
Denominations
. The Notes will be issuable only in fully registered form without
coupons in denominations of $2,000 and any integral multiples of $1,000 in excess thereof.
SECTION 2.4
Global Securities
. The Notes will be issuable in the form of one or more Global
Securities and the Depositary for such Global Security will be The Depository Trust Company in
accordance with the Base Indenture.
SECTION 2.5
Payment, Transfer and Exchange
. (a) The principal and interest on Notes
represented by Global Securities will be payable to the Depositary or its nominee, as the case may
be, as the sole registered owner and the sole Holder of the Global Securities represented thereby.
The principal and interest on Notes represented by physical securities will be payable, either in
person or by mail, at the office of the Paying Agent.
(b) Transfers of Global Securities will be limited to transfer in whole, but not in part, to
the Depositary, its successors or their respective nominees. Interests of beneficial owners in the
Global Securities may be transferred or exchanged for physical securities in accordance with the
Indenture. Notes represented by physical securities are presented to the Security Registrar with a
request from the Holder of such Securities to register a transfer or to exchange them for an equal
principal amount of Securities of other authorized denominations, the Security Registrar will
register the transfer as requested in accordance with the Indenture.
-6-
SECTION 2.6
Security Registrar and Paying Agent
. The Company initially appoints the Trustee
as Security Registrar and Paying Agent. The Company may change the Paying Agent and Security
Registrar without notice to Holders.
SECTION 2.7
Ranking
. The Notes will be senior unsecured obligations of the Company. The
payment of the principal of, premium, if any, and interest on the Notes will (i) rank equally in
right of payment with all other indebtedness of the Company that is not by its terms expressly
subordinated to other indebtedness of the Company, and (ii) rank senior in right of payment to all
indebtedness of the Company that is, by its terms, expressly subordinated to the senior
indebtedness of the Company.
SECTION 2.8
Trustee’s Right to Refuse Directions in Certain
Circumstances
. With respect to directions given by the Holders of a majority in principal
amount pursuant to the Indenture to the Trustee in its exercise of any trust or power, the Trustee
will be entitled to refuse to follow any such direction that conflicts with law or the Indenture or
that the Trustee determines in good faith is unduly prejudicial to the rights of other Holders or
may impose personal liability upon the Trustee, unless the Trustee is offered indemnity
satisfactory to it.
ARTICLE III
REDEMPTION
SECTION 3.1
Redemption
. (a) Except as provided in this Article III, the Company shall have
no obligation to redeem, purchase or repay the Notes pursuant to any mandatory redemption, sinking
fund or analogous provisions or at the option of a Holder thereof.
(b) The Notes are subject to redemption at any time or from time to time, in whole or in part,
at the Company’s option at a Redemption Price equal to the greater of (i) 100% of the principal
amount of the Notes to be redeemed on the
Redemption Date, and (ii) the sum of the present values of the remaining scheduled payments of
principal and interest on the Notes being redeemed on that Redemption Date (not including any
portion of any payments of interest accrued to the Redemption Date) discounted to the Redemption
Date on a semiannual basis at the Treasury Rate, as determined by the Reference Treasury Dealer,
plus 30 basis points for the 2019 Notes and 35 basis points for the 2039 Notes, plus, in each case,
accrued interest to the Redemption Date. The Company may provide in such notice that payment of
such Redemption Price and performance of the Company’s obligations with respect to such redemption
or purchase may be performed by another Person. Any such notice may, at the Company’s discretion,
be subject to the satisfaction of one or more conditions precedent.
-7-
SECTION 3.2
Redemption Procedures
. If less than all of the Notes of any series are to be
redeemed, the Notes to be redeemed shall be selected by lot by DTC, in the case of notes
represented by a Global Security, or by the Trustee by a method the Trustee deems to be fair and
appropriate, in the case of Notes that are not represented by a Global Security;
provided
that
Notes shall not be redeemed in principal amounts of $2,000 or less. In the case of Notes
represented by physical securities, a new Note in principal amount equal to the unredeemed portion
thereof will be issued in the name of the Holder thereof upon cancellation of the original Note.
In the case of Notes represented by a Global Security, the outstanding principal amount of the
Global Security representing the Notes will be reduced by book-entry. Notes called for redemption
become due on the Redemption Date. On and after the Redemption Date, interest stops accruing on
Notes or portions of them called for redemption (unless there is a default in the payment thereof).
On or before the Redemption Date, the Company will deposit with a paying agent (or the Trustee)
money sufficient to pay the Redemption Price of and accrued interest on the Notes to be redeemed on
that date.
SECTION 3.3
Notice of Redemption
. (a) At the Company’s written request made at least ten
days prior to the date the notice of redemption is to be given (unless a shorter notice shall be
agreed to in writing by the Trustee), the Trustee shall give the notice of redemption in the
Company’s name and at the Company’s sole expense.
(b) Notices of redemption shall be mailed by first class mail at least 30 but not more than 60
days before the Redemption Date to each Holder of Notes to be redeemed at its registered address.
If any Note is to be redeemed in part only, the notice of redemption that relates to such Note
shall state the portion of the principal amount thereof to be redeemed.
(c) Any notice to holders of Notes of any redemption will include the appropriate calculation
of the Redemption Price, but does not need to include the Redemption Price itself. The actual
Redemption Price, calculated as described above, will be set forth in an Officers’ Certificate of
the Company delivered to the Trustee no later than two Business Days prior to the Redemption Date.
ARTICLE IV
CHANGE OF CONTROL
SECTION 4.1
Change of Control
. (a) Upon the occurrence of a Change of Control Repurchase
Event, unless all Notes have been called for redemption, each Holder of Notes shall have the right
to require the Company to repurchase all or any part (equal to $2,000 or an integral multiple of
$1,000 in excess thereof) of such Holder’s Notes at an offer price in cash equal to the Change of
Control Payment.
-8-
Within 30 days following any Change of Control Repurchase Event or, at the Company’s option,
prior to any Change of Control, but after the public announcement of the proposed Change of
Control, the Company shall mail, or cause to be mailed, a notice to the Trustee and to each Holder
describing the transaction or transactions that constitute the Change of Control Repurchase Event
and offer to repurchase Notes (the “
Change of Control Offer
”) on the payment date (the
“
Change of Control Payment Date
”) specified in the notice, which date will be no earlier
than 30 days and no later than 60 days from the date such notice is mailed, other than as may be
required by law. The notice shall, if mailed prior to the date of consummation of the Change of
Control, state that the offer to purchase is conditioned on a Change of Control Repurchase Event
occurring on or prior to the payment date specified in the notice and shall also specify:
(i) that the Change of Control Offer is being made pursuant to this Section 4.1 and
that all Notes tendered will be accepted for payment;
(ii) the Change of Control Payment and the Change of Control Payment Date;
(iii) the CUSIP numbers for the Notes;
(iv) that any Note not tendered will continue to accrue interest;
(v) that, unless the Company defaults in the payment of the Change of Control Payment,
all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue
interest after the Change of Control Payment Date;
(vi) that Holders electing to have any Notes purchased pursuant to a Change of Control
Offer will be required to surrender such Notes to the Paying Agent at the address specified
in the notice prior to the close of business on the third Business Day prior to the Change
of Control Payment Date;
(vii) that Holders will be entitled to withdraw their election referred to in clause
(vi) if the Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control Payment Date, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount of Notes delivered for
purchase, and a statement that such Holder is withdrawing his election to have the Notes
purchased; and
(viii) that Holders whose Notes are being purchased only in part will be issued new
Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which
unpurchased portion will be equal to $2,000 in principal amount or an integral multiple of
$1,000 in excess thereof.
-9-
(b) Holders of Notes electing to have their Notes purchased pursuant to a Change of Control
Repurchase Event offer will be required to surrender their Notes, with the form entitled “Option of
Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address
specified in the notice, or transfer their Notes to the Paying Agent by book-entry transfer
pursuant to the applicable procedures of the Paying Agent, prior to the close of business on the
third business day prior to the Change of Control Payment Date.
(c) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a Change of Control
Repurchase Event. To the extent that the provisions of any applicable securities or corporate laws
or regulations conflict with the Change of Control Repurchase Event provisions of the Notes, the
Company will comply with the applicable securities or corporate laws and regulations and will not
be deemed to have breached its obligations under the Change of Control Repurchase Event provisions
of the Notes by virtue of such conflict.
(d) On the Change of Control Purchase Date, the Company will, to the extent lawful:
(i) accept for payment all Notes or portions of the Notes properly tendered pursuant
to the Change of Control Offer;
(ii) deposit with the Paying Agent an amount equal to the aggregate purchase price in
respect of all the Notes or portions of the Notes properly tendered; and
(iii) deliver or cause to be delivered to the Trustee the Notes properly accepted,
together with an Officers’ Certificate stating the aggregate principal amount of Notes
being purchased by the Company.
(e) The Paying Agent will promptly mail to each Holder of Notes properly tendered the Change
of Control Payment for the Notes (or make payment through the Depositary), and the Trustee will
promptly authenticate and mail (or cause to be transferred by book-entry) to each Holder a new Note
equal in principal amount to any unpurchased portion of any Notes surrendered;
provided
that each
new Note will be in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess
thereof.
(f) The Company will not be required to make a Change of Control Offer upon a Change of
Control Repurchase Event if a third party makes the Change of Control Offer in the manner, at the
times and otherwise in compliance with the requirements forth in this Section 4.1 applicable to a
Change of Control Offer made by the Company and such third party purchases all Notes properly
tendered and not withdrawn under its Change of Control Offer.
(g) The Trustee shall not be deemed to have notice of any Change of Control or Change of
Control Repurchase Event until the Trustee has received written notice thereof from the Company,
and in the absence of receipt of such notice, the Trustee may conclusively assume that no Change of
Control or Change of Control Repurchase Event has occurred. The Trustee shall have no obligation
or duty to (i) monitor, determine or inquire as to the rating of the Notes by any Rating Agency,
including, without limitation, as to whether the Notes carry an Investment Grade Rating from any
Rating Agency or as to whether any Rating Agency has at any time or during any period of time
reduced or upgraded its rating of the Notes below or above an Investment Grade Rating or (ii)
unless otherwise requested in writing by the Company, to provide notice of or disseminate to any
Person, including without limitation, any Holder, any information received from a Rating Agency
pursuant to clause (A) of the proviso of the definition of Change of Control Repurchase Event.
-10-
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1
Ratification of Base Indenture
. The Base Indenture, as supplemented by this First
Supplemental Indenture, is in all respects ratified and confirmed, and this First Supplemental
Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and
therein provided.
In addition to the modifications permitted by clauses (1) through (12) of Section 901 of the
Base Indenture, the Company, without the consent of any Holders, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, to conform the provisions of
this Indenture to the “Description of Notes” Section of the Prospectus Supplement.
SECTION 5.2
Trustee Not Responsible for Recitals
. The recitals contained herein and in the
Notes, except with respect to the Trustee’s certificates of authentication, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency of this First
Supplemental Indenture, of the Notes or of the Guaranties. The Trustee shall not be accountable
for the use or application by the Company of the Notes or the proceeds thereof.
SECTION 5.3
Table of Contents, Headings, etc.
The table of contents and headings of the
Articles and Sections of this First Supplemental Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way modify or restrict any
of the terms or provisions hereof.
SECTION 5.4
Counterpart Originals
. The parties may sign any number of copies of this First
Supplemental Indenture. Each signed copy shall be an original, but all of them together represent
the same agreement.
SECTION 5.5
Governing Law
. THIS FIRST SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
[Signature Pages Follow]
-11-
IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture to be duly executed
all as of the date and year first written above.
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THE COMPANY
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NEWMONT MINING CORPORATION
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By:
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/s/ Russell D. Ball
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Name:
Title:
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Russell D. Ball
Executive Vice President and
Chief Financial Officer
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THE SUBSIDIARY GUARANTOR
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NEWMONT USA LIMITED
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By:
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/s/ Thomas P. Mahoney
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Name:
Title:
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Thomas P. Mahoney
Vice President and Treasurer
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THE TRUSTEE
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
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By:
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/s/ Alex Briffett
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Name:
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John (Alex) Briffett
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Title:
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Senior Associate
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S-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO IN THE TERMS OF SECURITIES ATTACHED HERETO.
NEWMONT MINING CORPORATION
5.125% Senior Notes due 2019
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No. _____
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CUSIP No. 651639 AL0
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$
Newmont Mining Corporation, a corporation duly organized and existing under the laws of
Delaware (herein called the “Company”, which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered
assigns, the principal sum of
Dollars
($
) on October 1, 2019, and to
pay interest thereon from September 18, 2009 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on April 1 and October 1 in each year,
commencing April 1, 2010, at the rate of 5.125% per annum, until the principal hereof is paid or
made available for payment. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the March 15 or September 15 (whether or not
a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest on this Security will
be made at the office or agency of the Company maintained for that purpose in New York, New York,
in such coin or currency of the United States of America as at the time of payment is legal tender
for payment of public and private debts.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
A-1-1
In Witness Whereof
, the Company has caused this instrument to be duly executed under
its corporate seal.
Dated: September __, 2009
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NEWMONT MINING CORPORATION
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By:
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Name:
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Title:
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Attest:
A-1-2
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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THE BANK OF NEW YORK
MELLON TRUST COMPANY, N.A.,
As Trustee
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Dated:
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By:
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Authorized Signatory
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A-1-3
Reverse of Security
NEWMONT MINING CORPORATION
This Security is one of a duly authorized issue of securities of the Company (herein called
the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of
September 18, 2009 (herein called the “Base Indenture”), among the Company, Newmont USA Limited, as
Subsidiary Guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee (herein
called the “Trustee”, which term includes any successor trustee under the Indenture), as
supplemented by the First Supplemental Indenture, dated as of September 18, 2009 (herein called the
“First Supplemental Indenture” and the Base Indenture, as so supplemented by the First Supplemental
Indenture, herein called the “Indenture”), among the Company, the Subsidiary Guarantor and the
Trustee, and reference is hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the Subsidiary Guarantor,
the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
The Securities of this series are subject to redemption upon not less than 30 days’ notice by
mail, at any time, as a whole or in part, at the election of the Company, in accordance with the
terms of the Indenture, at the greater of the following amounts:
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•
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100% of the principal amount of the Securities being redeemed on the Redemption Date; or
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•
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the sum of the present values of the remaining scheduled payments of principal and
interest on the Securities being redeemed on that Redemption Date (not including any
portion of any payments of interest accrued to the Redemption Date) discounted to the
Redemption Date on a semiannual basis, at the Treasury Rate plus 30 basis points;
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plus, in each case, accrued and unpaid interest on the Securities to the Redemption Date.
Upon the occurrence of a Change of Control Repurchase Event, unless all Securities have been
called for redemption pursuant to the provision described above, each Holder of Securities of this
series shall have the right to require the Company to repurchase all or any part (equal to $2,000
or an integral multiple of $1,000 in excess thereof) of such Securities at an offer price in cash
equal to the Change of Control Payment.
In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
The Securities shall have the benefit of the Guaranty of Newmont USA Limited on the terms set
forth therein.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of the
Security upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
A-1-4
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of at least a majority in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee
indemnity satisfactory to the Trustee, and the Trustee shall not have received from the Holders of
a majority in principal amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days
after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of $2,000 and any integral multiples of $1,000 in excess thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this 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 this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
A-1-5
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
THIS SECURITY WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
A-1-6
GUARANTY
For value received, Newmont USA Limited, a Delaware corporation, (the “Guarantor”) hereby
fully and unconditionally guarantees the cash payments in United States dollars of principal of and
interest on the Security on which this Guarantee is endorsed in the amounts and at the time when
due and interest on the overdue principal and interest, if any, on this Security, if lawful, and
the payment of all other obligations of Newmont Mining Corporation (the “Company”) under the
Indenture or the Security, to the Holder of this Security and the Trustee, all in accordance with
and subject to the terms and limitations of this Security, Article 14 of the Base Indenture and
this Guaranty. This Guaranty will become effective in accordance with Article 14 of the Base
Indenture and its terms shall be evidenced therein. Capitalized terms used but not defined herein
shall have the meanings ascribed to them in the Indenture, dated as of September 18, 2009 (herein
called the “Base Indenture”), among the Company, the Guarantor, and The Bank of New York Mellon
Trust Company, N.A., as trustee, as amended or supplemented (as so amended or supplemented, the
“Indenture”).
The obligations of the undersigned to the Holder of this Security and to the Trustee pursuant
to the Guaranty and the Indenture are expressly set forth in Article 14 of the Base Indenture and
reference is hereby made to the Indenture for the precise terms and limitations of the Guaranty and
all of the other provisions of the Indenture to which this Guaranty relates. Each Holder of the
Security to which this Guaranty is endorsed, by accepting such Security, agrees to and shall be
bound by such provisions. The Guarantor will be deemed released from all of its obligations under
the Indenture and this Guaranty, and this Guaranty will terminate, without any action required on
the part of the Trustee or any Holder of the Securities, upon the terms and conditions as provided
in Sections 1402 and 1403 of the Indenture.
This Guaranty shall be an unsecured and unsubordinated obligation of the Guarantor and rank
equally with other unsecured and unsubordinated indebtedness of the Guarantor that is currently
outstanding or that it may issue in the future.
This Guaranty shall not be valid or obligatory for any purpose until the certificate of
authentication on the Security upon which this Guaranty is endorsed shall have been executed by the
Trustee under the Indenture by manual signature.
THIS GUARANTY WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
This Guaranty is subject to release upon the terms set forth in the Indenture.
A-1-7
IN WITNESS WHEREOF this instrument has been duly executed in the name of the Guarantor.
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NEWMONT USA LIMITED
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By:
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Authorized Signatory
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A-1-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to the Company’s
offer upon a Change of Control Repurchase Event in accordance with the Indenture, check the box:
o
If you want to elect to have only part of this Note purchased by the Company pursuant to the
Indenture, state the amount in principal amount (must be denominations of $2,000 or an integral
multiple of $1,000 in excess thereof): $
.
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Date:
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Your Signature:
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(Sign exactly as your name appears on the other side of the Note)
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Signature Guarantee:
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(Signature must be guaranteed)
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The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to SEC Rule 17Ad-15.
A-1-9
Exhibit A-2
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO IN THE TERMS OF SECURITIES ATTACHED HERETO.
NEWMONT MINING CORPORATION
6.250% Senior Notes due 2039
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No. _____
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CUSIP No. 651639 AM8
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$
Newmont Mining Corporation, a corporation duly organized and existing under the laws of
Delaware (herein called the “Company”, which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered
assigns, the principal sum of
Dollars
($
) on October 1, 2039, and
to pay interest thereon from September 18, 2009 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on April 1 and October 1 in each
year, commencing April 1, 2010, at the rate of 6.250% per annum, until the principal hereof is paid
or made available for payment. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the March 15 or September 15 (whether
or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and any such interest on this Security will
be made at the office or agency of the Company maintained for that purpose in New York, New York,
in such coin or currency of the United States of America as at the time of payment is legal tender
for payment of public and private debts.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
A-2-1
In Witness Whereof
, the Company has caused this instrument to be duly executed under
its corporate seal.
Dated: September __, 2009
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NEWMONT MINING CORPORATION
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By:
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Name:
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Title:
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Attest:
A-2-2
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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THE BANK OF NEW YORK
MELLON TRUST COMPANY, N.A.,
As Trustee
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Dated:
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By:
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Authorized Signatory
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A-2-3
Reverse of Security
NEWMONT MINING CORPORATION
This Security is one of a duly authorized issue of securities of the Company (herein called
the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of
September 18, 2009 (herein called the “Base Indenture”), among the Company, Newmont USA Limited, as
Subsidiary Guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee (herein
called the “Trustee”, which term includes any successor trustee under the Indenture), as
supplemented by the First Supplemental Indenture, dated as of September 18, 2009 (herein called the
“First Supplemental Indenture” and the Base Indenture, as so supplemented by the First Supplemental
Indenture, herein called the “Indenture”), among the Company, the Subsidiary Guarantor and the
Trustee, and reference is hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the Subsidiary Guarantor,
the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
The Securities of this series are subject to redemption upon not less than 30 days’ notice by
mail, at any time, as a whole or in part, at the election of the Company, in accordance with the
terms of the Indenture, at the greater of the following amounts:
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•
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100% of the principal amount of the Securities being redeemed on the Redemption Date; or
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the sum of the present values of the remaining scheduled payments of principal and
interest on the Securities being redeemed on that Redemption Date (not including any
portion of any payments of interest accrued to the Redemption Date) discounted to the
Redemption Date on a semiannual basis, at the Treasury Rate plus 35 basis points;
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plus, in each case, accrued and unpaid interest on the Securities to the Redemption Date.
Upon the occurrence of a Change of Control Repurchase Event, unless all Securities have been
called for redemption pursuant to the provision described above, each Holder of Securities of this
series shall have the right to require the Company to repurchase all or any part (equal to $2,000
or an integral multiple of $1,000 in excess thereof) of such Securities at an offer price in cash
equal to the Change of Control Payment.
In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
The Securities shall have the benefit of the Guaranty of Newmont USA Limited on the terms set
forth therein.
The Indenture contains provisions for defeasance at any time of the entire indebtedness of the
Security upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
A-2-4
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of at least a majority in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether
or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security
shall not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee
indemnity satisfactory to the Trustee, and the Trustee shall not have received from the Holders of
a majority in principal amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days
after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and any premium and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of $2,000 and any integral multiples of $1,000 in excess thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this 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 this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
A-2-5
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
THIS SECURITY WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
A-2-6
GUARANTY
For value received, Newmont USA Limited, a Delaware corporation, (the “Guarantor”) hereby
fully and unconditionally guarantees the cash payments in United States dollars of principal of and
interest on the Security on which this Guarantee is endorsed in the amounts and at the time when
due and interest on the overdue principal and interest, if any, on this Security, if lawful, and
the payment of all other obligations of Newmont Mining Corporation (the “Company”) under the
Indenture or the Security, to the Holder of this Security and the Trustee, all in accordance with
and subject to the terms and limitations of this Security, Article 14 of the Base Indenture and
this Guaranty. This Guaranty will become effective in accordance with Article 14 of the Base
Indenture and its terms shall be evidenced therein. Capitalized terms used but not defined herein
shall have the meanings ascribed to them in the Indenture, dated as of September 18, 2009 (herein
called the “Base Indenture”), among the Company, the Guarantor, and The Bank of New York Mellon
Trust Company, N.A., as trustee, as amended or supplemented (as so amended or supplemented, the
“Indenture”).
The obligations of the undersigned to the Holder of this Security and to the Trustee pursuant
to the Guaranty and the Indenture are expressly set forth in Article 14 of the Base Indenture and
reference is hereby made to the Indenture for the precise terms and limitations of the Guaranty and
all of the other provisions of the Indenture to which this Guaranty relates. Each Holder of the
Security to which this Guaranty is endorsed, by accepting such Security, agrees to and shall be
bound by such provisions. The Guarantor will be deemed released from all of its obligations under
the Indenture and this Guaranty, and this Guaranty will terminate, without any action required on
the part of the Trustee or any Holder of the Securities, upon the terms and conditions as provided
in Sections 1402 and 1403 of the Indenture.
This Guaranty shall be an unsecured and unsubordinated obligation of the Guarantor and rank
equally with other unsecured and unsubordinated indebtedness of the Guarantor that is currently
outstanding or that it may issue in the future.
This Guaranty shall not be valid or obligatory for any purpose until the certificate of
authentication on the Security upon which this Guaranty is endorsed shall have been executed by the
Trustee under the Indenture by manual signature.
THIS GUARANTY WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
This Guaranty is subject to release upon the terms set forth in the Indenture.
A-2-7
IN WITNESS WHEREOF this instrument has been duly executed in the name of the Guarantor.
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NEWMONT USA LIMITED
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By:
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Authorized Signatory
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A-2-8
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to the Company’s
offer upon a Change of Control Repurchase Event in accordance with the Indenture, check the box:
o
If you want to elect to have only part of this Note purchased by the Company pursuant to the
Indenture, state the amount in principal amount (must be denominations of $2,000 or an integral
multiple of $1,000 in excess thereof): $
.
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Date:
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Your Signature:
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(Sign exactly as your name appears on the other side of the Note)
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Signature Guarantee:
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(Signature must be guaranteed)
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The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an approved signature guarantee
medallion program), pursuant to SEC Rule 17Ad-15.
A-2-9
