-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PgjvtUhHZGKDNKJxDI6OqX/BmOgEELR8EezvCNeOn33zQWaxoFiHePkW6QqbglbB UIystyDSYLLPqYTbUotZsA== 0000950123-10-087981.txt : 20100922 0000950123-10-087981.hdr.sgml : 20100922 20100922100233 ACCESSION NUMBER: 0000950123-10-087981 CONFORMED SUBMISSION TYPE: 8-A12B PUBLIC DOCUMENT COUNT: 9 FILED AS OF DATE: 20100922 DATE AS OF CHANGE: 20100922 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ANGLOGOLD ASHANTI LTD CENTRAL INDEX KEY: 0001067428 STANDARD INDUSTRIAL CLASSIFICATION: GOLD & SILVER ORES [1040] IRS NUMBER: 000000000 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-A12B SEC ACT: 1934 Act SEC FILE NUMBER: 001-14846 FILM NUMBER: 101083969 BUSINESS ADDRESS: STREET 1: 76 JEPPE STREET, NEWTOWN, 2001 STREET 2: PO BOX 62117 MARSHALLTOWN 2107 CITY: JOHANNESBURG 2001 STATE: T3 ZIP: 00000 BUSINESS PHONE: 27116376000 MAIL ADDRESS: STREET 1: 76 JEPPE STREET, NEWTOWN, 2001 STREET 2: PO BOX 62117 MARSHALLTOWN 2107 CITY: JOHANNESBURG 2001 STATE: T3 ZIP: 00000 FORMER COMPANY: FORMER CONFORMED NAME: ANGLOGOLD LTD DATE OF NAME CHANGE: 19980803 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AngloGold Ashanti Holdings Finance plc CENTRAL INDEX KEY: 0001469148 STANDARD INDUSTRIAL CLASSIFICATION: ASSET-BACKED SECURITIES [6189] IRS NUMBER: 000000000 STATE OF INCORPORATION: X0 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-A12B SEC ACT: 1934 Act SEC FILE NUMBER: 001-34881 FILM NUMBER: 101083970 BUSINESS ADDRESS: STREET 1: 1ST FLOOR, ATLANTIC HOUSE STREET 2: 4-8 CIRCULAR ROAD CITY: DOUGLAS, ISLE OF MAN STATE: X0 ZIP: IM1 1AG BUSINESS PHONE: 44-1624-697285 MAIL ADDRESS: STREET 1: 1ST FLOOR, ATLANTIC HOUSE STREET 2: 4-8 CIRCULAR ROAD CITY: DOUGLAS, ISLE OF MAN STATE: X0 ZIP: IM1 1AG 8-A12B 1 u09732e8va12b.htm 8-A12B e8va12b
Table of Contents

 
 
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
AngloGold Ashanti Limited
(Exact Name of Registrant as Specified in its Charter)
The Republic of South Africa
(State or Other Jurisdiction of Incorporation or Organization)
Not Applicable
(I.R.S. Employer Identification No.)
76 Jeppe Street
Newtown, Johannesburg, 2001
(PO Box 62117, Marshalltown, 2107)
South Africa
Tel: +27 (11) 637-6000
(Address of Principal Executive Offices)
Not Applicable
(Zip Code)
AngloGold Ashanti Holdings Finance plc
(Exact Name of Registrant as Specified in its Charter)
The Isle of Man
(State or Other Jurisdiction of Incorporation or Organization)
Not Applicable
(I.R.S. Employer Identification No.)
1st Floor, Atlantic House
4-8 Circular Road
Douglas, Isle of Man, IM1 1AG
Tel: +44 (1624) 697 280
(Address of Principal Executive Offices)
Not Applicable
(Zip Code)
If this form relates to the registration of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective pursuant to General Instruction A.(c), please check the following box. þ
If this form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to General Instruction A.(d), please check the following box. o
Securities Act registration statement file number to which this form relates: 333-161634 and 333-161634-01
Securities to be registered pursuant to Section 12(b) of the Act:
     
Title of Each Class
to be so Registered 		  Name of Each Exchange on Which
Each Class is to be Registered
     
6.00% Mandatory Convertible Subordinated Bonds due 2013   New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act: None
 
 

 

TABLE OF CONTENTS

Item 1: Description of Registrants’ Securities to be Registered
Item 2: Exhibits
SIGNATURES
EXHIBIT INDEX
Exhibit 99.D
Exhibit 99.E

Table of Contents

Item 1: Description of Registrants’ Securities to be Registered
     For a description of the securities to be registered hereunder, reference is made to the information under the heading “Description of Debt Securities” on pages 6 through 22 of the Prospectus dated April 20, 2010 included in Post-Effective Amendment No. 1 to Registration Statement on Form F-3 of AngloGold Ashanti Holdings Finance plc (the “Issuer”), AngloGold Ashanti Limited (the “Guarantor”), and AngloGold Ashanti Holdings plc and filed on April 20, 2010 (Registration Nos. 333-161634-01, 333-161634 and 333-161634-02), as supplemented by the information under the headings “Risk Factors—Risks related to the bonds, our ordinary shares and our ADSs” and “Description of Bonds” on pages S-39 through S-44 and S-53 through S-77, respectively, of the related Prospectus Supplement, dated September 15, 2010, which information is incorporated by reference and made part of this registration statement in its entirety.
Item 2: Exhibits
     99(A). Prospectus dated April 20, 2010 incorporated by reference to Post-Effective Amendment No. 1 to Registration Statement on Form F-3 of the Issuer, the Guarantor and AngloGold Ashanti Holdings plc filed on April 20, 2010 (Registration Nos. 333-161634-01, 333-161634 and 333-161634-02).
     99(B). Prospectus Supplement dated September 15, 2010 incorporated by reference to the filing by the Issuer and the Guarantor under Rule 424(b)(5) on September 15, 2010.
     99(C). Form of Global Note (included in the First Supplemental Indenture, filed herewith as Exhibit 99(E)).
     99(D). Form of indenture for guaranteed debt securities among the Issuer, the Guarantor and The Bank of New York Mellon (the “Trustee”).
     99(E). Form of First Supplemental Indenture among the Issuer, the Guarantor and the Trustee.

 

Table of Contents

SIGNATURES
     Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, each of the Registrants has duly caused this registration statement to be signed on its behalf by the undersigned, thereto duly authorized.
         
  AngloGold Ashanti Holdings Finance plc
(Registrant)
 		  
  By:   /s/ Emma Callister   
    Name:   Emma Callister  
    Title:   Director  
 
  AngloGold Ashanti Limited
(Registrant)
 		  
  By:   /s/ Linda Eatwell  
    Name:   Linda Eatwell  
    Title:   Company Secretary   
 
Date: September 22, 2010

 

Table of Contents

EXHIBIT INDEX
     
Exhibit No.   Description
99(A).
  Prospectus dated April 20, 2010 incorporated by reference to Post-Effective Amendment No. 1 to Registration Statement on Form F-3 of the Issuer, the Guarantor and AngloGold Ashanti Holdings plc filed on April 20, 2010 (Registration Nos. 333-161634-01, 333-161634 and 333-161634-02).
 
    
99(B).
  Prospectus Supplement dated September 15, 2010 incorporated by reference to the filing by the Company and the Guarantor under Rule 424(b)(5) on September 15, 2010.
 
    
99(C).
  Form of Global Note (included in the First Supplemental Indenture, filed herewith as Exhibit 99(E)).
 
    
99(D).
  Form of indenture for guaranteed debt securities among the Issuer, the Guarantor and The Bank of New York Mellon (the “Trustee”).
 
    
99(E).
  Form of First Supplemental Indenture among the Issuer, the Guarantor and the Trustee.

 

EX-99.D 2 u09732exv99wd.htm EXHIBIT 99.D exv99wd
Exhibit 99.D
 
 
ANGLOGOLD ASHANTI HOLDINGS FINANCE PLC
as Issuer
ANGLOGOLD ASHANTI LIMITED
as Guarantor
THE BANK OF NEW YORK MELLON,
Trustee
 
Indenture
Dated as of September 22, 2010
 
 
 

 

 

ANGLOGOLD ASHANTI HOLDINGS FINANCE PLC
as Issuer
AND
ANGLOGOLD ASHANTI LIMITED
as Guarantor
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of September 22, 2010
     
Trust Indenture    
Act Section   Indenture Section
§ 310(a)(1)
   607(a)
(a)(2)
   607(a)
(b)
   608
§ 312(c)
   701
§ 314(a)
   703
(a)(4)
   1004
(c)(1)
   102
(c)(2)
   102
(e)
   102
§ 315(b)
   601
§ 316(a)(last sentence)
   101 (“Outstanding”)
(a)(1)(A)
   502, 512
(a)(1)(B)
   513
(b)
   508
(c)
   104(e)
§ 317(a)(1)
   503
(a)(2)
   504
(b)
   1003
§ 318(a)
   111
 
Note:   This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.

 

 

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  
“Additional Amounts”
     2  
“Affiliate”
     2  
“Attributable Debt”
     2  
“Authenticating Agent”
     3  
“Authorized Newspaper”
     3  
“Bearer Security”
     3  
“Board of Directors”
     3  
“Board Resolution”
     3  
“Business Day”
     3  
“Capital Markets Indebtedness”
     3  
“Clearstream”
     3  
“Commission”
     3  
“Common Depositary”
     3  
“Company”
     4  
“Company Request” or “Company Order”
     4  
“Consolidated Net Tangible Assets”
     4  
“Conversion Date”
     4  
“Conversion Event”
     4  
“Corporate Trust Office”
     4  
“corporation”
     4  
“coupon”
     4  
“Currency”
     4  
“Debt”
     4  
“Default”
     5  
“Defaulted Interest”
     5  
“Depositary”
     5  
“Dollar” or “$”
     5  
“Dollar Equivalent of the Currency Unit”
     5  
Note:   This table of contents shall not, for any purpose, be deemed to be a part of the Indenture.

 

ii

         
    Page  
 
“Dollar Equivalent of the Foreign Currency”
     5  
“Election Date”
     5  
“Euro”
     5  
“Euroclear”
     5  
“Event of Default”
     5  
“Exchange Date”
     5  
“Exchange Rate Agent”
     5  
“Exchange Rate Officers’ Certificate”
     5  
“Federal Bankruptcy Code”
     6  
“Foreign Currency”
     6  
“Government Obligations”
     6  
“Guarantee”
     6  
“Guarantor”
     6  
“Guarantor Request” and “Guarantor Order”
     6  
“Holder”
     6  
“Indenture”
     6  
“Indexed Security”
     7  
“interest”
     7  
“Interest Payment Date”
     7  
“Lien”
     7  
“Margin Stock”
     7  
“Market Exchange Rate”
     7  
“Maturity”
     8  
“Officers’ Certificate”
     8  
“Opinion of Counsel”
     8  
“Original Issue Discount Security”
     8  
“Outstanding”
     8  
“Paying Agent”
     9  
“Person”
     9  
“Place of Payment”
     9  
“Predecessor Security”
     9  
“Principal Property”
     10  
“Project Finance Indebtedness”
     10  
“Redemption Date”
     10  
“Redemption Price”
     10  
“Registered Security”
     10  
“Regular Record Date”
     10  
“Repayment Date”
     10  
“Repayment Price”
     11  
“Responsible Officer”
     11  
“Restricted Securities”
     11  
“Restricted Subsidiary”
     11  
“Securities”
     11  
“Security Register” and “Security Registrar”
     11  
“Special Record Date”
     11  
“Stated Maturity”
     11  

 

iii

         
    Page  
 
“Subsidiary”
     11  
“Taxing Jurisdiction”
     12  
“Trust Indenture Act” or “TIA”
     12  
“Trustee”
     12  
“United States”
     12  
“United States person”
     12  
“Valuation Date”
     12  
“Voting Stock”
     12  
“Yield to Maturity”
     12  
SECTION 102. Compliance Certificates and Opinions
     12  
SECTION 103. Form of Documents Delivered to Trustee
     13  
SECTION 104. Acts of Holders
     14  
SECTION 105. Notices, etc. to Trustee, the Company and the Guarantor
     15  
SECTION 106. Notice to Holders; Waiver
     16  
SECTION 107. Effect of Headings and Table of Contents
     17  
SECTION 108. Successors and Assigns
     17  
SECTION 109. Separability Clause
     17  
SECTION 110. Benefits of Indenture
     18  
SECTION 111. Governing Law
     18  
SECTION 112. Legal Holidays
     18  
SECTION 113. Submission to Jurisdiction; Appointment of Agent for Service of Process
     18  
SECTION 114. Waiver of Jury Trial.
     19  
SECTION 115. Force Majeure.
     19  
 
        
ARTICLE TWO SECURITY FORMS
        
 
        
SECTION 201. Forms Generally.
     19  
SECTION 202. Form of Trustee’s Certificate of Authentication
     20  
SECTION 203. Securities Issuable in Global Form
     21  
SECTION 204. Form of Guarantee
     22  
 
        
ARTICLE THREE THE SECURITIES
        
 
        
SECTION 301. Amount Unlimited; Issuable in Series
     23  
SECTION 302. Denominations
     27  
SECTION 303. Execution, Authentication, Delivery and Dating
     27  
SECTION 304. Temporary Securities
     29  
SECTION 305. Registration, Registration of Transfer and Exchange
     32  
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities
     36  
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional Interest Reset
     37  
SECTION 308. Optional Extension of Stated Maturity
     39  
SECTION 309. Persons Deemed Owners
     40  
SECTION 310. Cancellation
     41  
SECTION 311. Computation of Interest
     42  
SECTION 312. Currency and Manner of Payments in Respect of Securities
     42  

 

iv

         
    Page  
 
SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent
     45  
SECTION 314. CUSIP Numbers
     45  
 
        
ARTICLE FOUR SATISFACTION AND DISCHARGE
        
 
        
SECTION 401. Satisfaction and Discharge of Indenture
     46  
SECTION 402. Application of Trust Money
     47  
 
        
ARTICLE FIVE REMEDIES
        
 
        
SECTION 501. Events of Default
     47  
SECTION 502. Acceleration of Maturity; Rescission and Annulment
     49  
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee
     50  
SECTION 504. Trustee May File Proofs of Claim
     51  
SECTION 505. Trustee May Enforce Claims Without Possession of Securities
     51  
SECTION 506. Application of Money Collected
     52  
SECTION 507. Limitation on Suits
     52  
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest
     53  
SECTION 509. Restoration of Rights and Remedies
     53  
SECTION 510. Rights and Remedies Cumulative
     53  
SECTION 511. Delay or Omission Not Waiver
     53  
SECTION 512. Control by Holders
     53  
SECTION 513. Waiver of Past Defaults
     54  
SECTION 514. Waiver of Stay or Extension Laws
     54  
SECTION 515. Undertaking for Costs
     54  
SECTION 516. Statement by Officers as to Default
     55  
 
        
ARTICLE SIX THE TRUSTEE
        
 
        
SECTION 601. Notice of Defaults
     55  
SECTION 602. Certain Rights of Trustee
     55  
SECTION 603. Trustee Not Responsible for Recitals or Issuance of Securities
     58  
SECTION 604. May Hold Securities
     58  
SECTION 605. Money Held in Trust
     58  
SECTION 606. Compensation and Reimbursement
     59  
SECTION 607. Corporate Trustee Required; Eligibility
     59  
SECTION 608. Resignation and Removal; Appointment of Successor
     60  
SECTION 609. Acceptance of Appointment by Successor
     61  
SECTION 610. Merger, Conversion, Consolidation or Succession to Business
     62  
SECTION 611. Appointment of Authenticating Agent
     63  
 
        
ARTICLE SEVEN HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
        
 
        
SECTION 701. Disclosure of Names and Addresses of Holders
     64  

 

v

         
    Page  
 
SECTION 702. Reports by Trustee
     64  
SECTION 703. Reports by the Company and the Guarantor
     65  
 
        
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
        
 
        
SECTION 801. Company or Guarantor May Consolidate, etc., Only on Certain Terms
     65  
SECTION 802. Successor Person Substituted
     66  
SECTION 803. Assumption by Guarantor
     66  
 
        
ARTICLE NINE SUPPLEMENTAL INDENTURES
        
 
        
SECTION 901. Supplemental Indentures Without Consent of Holders
     67  
SECTION 902. Supplemental Indentures with Consent of Holders
     69  
SECTION 903. Execution of Supplemental Indentures
     70  
SECTION 904. Effect of Supplemental Indentures
     70  
SECTION 905. Conformity with Trust Indenture Act
     70  
SECTION 906. Reference in Securities to Supplemental Indentures
     70  
 
        
ARTICLE TEN COVENANTS
        
 
        
SECTION 1001. Payment of Principal, Premium, if any, and Interest
     71  
SECTION 1002. Maintenance of Office or Agency
     71  
SECTION 1003. Money for Securities Payments to Be Held in Trust
     73  
SECTION 1004. Statement as to Compliance
     74  
SECTION 1005. Additional Amounts
     75  
SECTION 1006. Limitation on Liens.
     76  
SECTION 1007. Limitation on Sale and Leaseback Transactions.
     80  
SECTION 1008. Waiver of Certain Covenants
     81  
SECTION 1009. Calculation of Original Issue Discount.
     82  
 
        
ARTICLE ELEVEN REDEMPTION OF SECURITIES
        
 
        
SECTION 1101. Applicability of Article
     82  
SECTION 1102. Election to Redeem; Notice to Trustee
     82  
SECTION 1103. Selection by Trustee of Securities to Be Redeemed
     82  
SECTION 1104. Notice of Redemption
     83  
SECTION 1105. Deposit of Redemption Price
     84  
SECTION 1106. Securities Payable on Redemption Date
     84  
SECTION 1107. Securities Redeemed in Part
     85  
SECTION 1108. Optional Redemption Due to Changes in Tax Treatment
     85  

 

vi

         
    Page  
 
        
ARTICLE TWELVE SINKING FUNDS
        
 
        
SECTION 1201. Applicability of Article
     86  
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities
     86  
SECTION 1203. Redemption of Securities for Sinking Fund
     87  
 
        
ARTICLE THIRTEEN REPAYMENT AT OPTION OF HOLDERS
        
 
        
SECTION 1301. Applicability of Article
     87  
SECTION 1302. Repayment of Securities
     87  
SECTION 1303. Exercise of Option
     88  
SECTION 1304. When Securities Presented for Repayment Become Due and Payable
     88  
SECTION 1305. Securities Repaid in Part
     89  
 
        
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE
        
 
        
SECTION 1401. Applicability of Article; Company’s and Guarantor’s Option to Effect Defeasance or Covenant Defeasance
     90  
SECTION 1402. Defeasance and Discharge
     90  
SECTION 1403. Covenant Defeasance
     91  
SECTION 1404. Conditions to Defeasance or Covenant Defeasance
     91  
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions
     93  
 
        
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES
        
 
        
SECTION 1501. Purposes for Which Meetings May Be Called
     94  
SECTION 1502. Call, Notice and Place of Meetings
     94  
SECTION 1503. Persons Entitled to Vote at Meetings
     94  
SECTION 1504. Quorum; Action
     95  
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings
     96  
SECTION 1506. Counting Votes and Recording Action of Meetings
     97  
 
        
ARTICLE SIXTEEN GUARANTEE OF SECURITIES
        
 
        
SECTION 1601. Guarantee
     97  
SECTION 1602. Execution of Guarantee
     99  

 

vii

         
    Page  
 
TESTIMONIUM
     1  
SIGNATURES AND SEALS
     1  
FORMS OF CERTIFICATION
   EXHIBIT A

 

          INDENTURE, dated as of September 22, 2010, among AngloGold Ashanti Holdings Finance plc, a corporation duly organized and existing under the laws of the Isle of Man (herein called the “Company”), having its principal office at 1st Floor, Atlantic House, 4-8 Circular Road, Douglas, Isle of Man, IM1 1AG, AngloGold Ashanti Limited, a corporation duly organized and existing under the laws of South Africa (herein called the “Guarantor”), having its principal office at 76 Jeppe Street, Newtown, Johannesburg, 2001 (PO Box 62117, Marshalltown, 2107), South Africa, and The Bank of New York Mellon, a New York banking corporation, as Trustee hereunder (herein called the “Trustee”).
RECITALS OF THE COMPANY
          The Company has 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 or may not be exchangeable for the Guarantor’s ordinary shares, to be issued in one or more series, unlimited as to principal amount, to bear such rates of interest, to mature at such times and to have such other provisions as shall be fixed as hereinafter provided.
          The Guarantor has duly authorized the execution and delivery of this Indenture and deems it appropriate from time to time to issue its guaranty of the Securities on the terms herein provided.
          This Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions.
          This Indenture is subject to South African Reserve Bank approval.
          All things necessary to make this Indenture a valid agreement of the parties hereto, 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 covenanted and 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

     (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 International Financial Reporting Standards, and, except as otherwise herein expressly provided, the term “International Financial Reporting Standards” with respect to any computation required or permitted hereunder shall mean such accounting standards as shall be applicable at the date of such computation; and
     (4) 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.
          Certain terms, used principally in Article Three, are defined in that Article.
          “Act”, when used with respect to any Holder, has the meaning specified in Section 104.
          “Additional Amounts” has the meaning specified in Section 1005.
          “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.
          “Attributable Debt” means, as to any particular lease in a sale and leaseback transaction (as defined in Section 1007), synthetic lease or other finance-type lease under which any Person is at the time liable for a term of more than 12 months (but, for the sake of clarity, excluding any operating lease and lease entered into for the bona fide purpose of conducting mining, exploration or other operations), at any date as of which the amount thereof is to be determined, the total net amount of rent required to be paid by such Person under such lease during the remaining term thereof (excluding any subsequent renewal or other extension options held by the lessee), 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 directors, or any director and secretary, of the Guarantor), compounded monthly. The net amount of rent required to be paid under any such lease for any such period shall be the aggregate 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, services, insurance, taxes, assessments, water rates and similar charges and contingent rents (such as those based on sales). In the case of any lease which is terminable by the lessee upon the payment of a penalty, such net amount of rent shall include the lesser of (i) the total discounted net amount of rent required to be paid from the later of the first date upon which such lease may be so terminated or the date of the determination of such net amount of rent, as the case may be, and (ii) the amount of such penalty (in which event 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).

 

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          “Authenticating Agent” means any Person appointed by the Trustee to act on behalf of the Trustee pursuant to Section 611 to authenticate Securities.
          “Authorized Newspaper” means a newspaper, in the English language or in an official language of the country of publication, customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in each place in connection with which the term is used or in the financial community of each such place. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any Business Day.
          “Bearer Security” means any Security except a Registered Security.
          “Board of Directors” means, as the context may require, (1) with respect to the Company, either the Board of Directors of the Company or any committee of such Board of Directors duly authorized to act hereunder and (2) with respect to the Guarantor, either the Board of Directors of the Guarantor or any committee of such Board of Directors duly authorized to act hereunder.
          “Board Resolution” means a copy of a resolution certified by any two directors of the Company, or any two directors, or any director and secretary, of the Guarantor, as the case may be, to have been duly adopted by its 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 or any other particular location referred to in this Indenture or in the Securities, means, unless otherwise specified with respect to any Securities pursuant to Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment or other location are authorized or obligated by law or executive order to close.
          “Capital Markets Indebtedness” means any indebtedness for money borrowed or interest thereon in the form of bonds, notes, debentures, loan stock or other similar securities that are, or are capable of being, quoted, listed or ordinarily dealt with in any stock exchange, over-the-counter or other securities market, having an original maturity of more than 365 days from its date of issue, or any guarantee or indemnity in respect thereof.
          “Clearstream” means Clearstream Banking, société anonyme, formerly known as Cedelbank, or its successor.
          “Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, as amended, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
          “Common Depositary” has the meaning specified in Section 304.

 

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          “Company” means the Person named as the “Company” in the first paragraph of this Indenture 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 any two directors of the Company, and delivered to the Trustee.
          “Consolidated Net Tangible Assets” means the total amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom (i) all current liabilities (excluding any current liabilities 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 (ii) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles, all as set forth on the most recent balance sheet of the Guarantor and its consolidated Subsidiaries (but, in any event, as of a date within 150 days of the date of determination) prepared in accordance with International Financial Reporting Standards and expressed in Dollars.
          “Conversion Date” has the meaning specified in Section 312(d).
          “Conversion Event” means the cessation of use of (i) a Foreign Currency both by the government of the country which issued such Currency and by a central bank or other public institution of or within the international banking community for the settlement of transactions, (ii) the euro both within the European Union and for the settlement of transactions by public institutions of or within the European Union or (iii) any currency unit (or composite currency) other than the euro for the purposes for which it was established.
          “Corporate Trust Office” means the principal corporate trust office of the Trustee, at which at any particular time its corporate trust business shall be administered, which office on the date of execution of this Indenture is located at 101 Barclay Street, New York, Floor 4E, New York 10286, Attention: Global Finance Americas, or such other address as the Trustee may designate from time to time by notice to the Holders, the Company and the Guarantor, except that with respect to presentation of Securities for payment or for registration of transfer or exchange, such term shall mean the office or agency of the Trustee at which, at any particular time, its corporate agency business shall be conducted.
          “corporation” includes corporations, associations, companies and business trusts.
          “coupon” means any interest coupon appertaining to a Bearer Security.
          “Currency” means any currency or currencies, composite currency or currency unit or currency units, including, without limitation, the euro, issued by the government of one or more countries or by any recognized confederation or association of such governments.
          “Debt” means notes, bonds, debentures or other similar evidences of indebtedness for money borrowed.

 

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          “Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.
          “Defaulted Interest” has the meaning specified in Section 307.
          “Depositary” means the clearing agency registered under the Securities Exchange Act of 1934, as amended, that is designated to act as the depositary with respect to any Securities issued in global form, and unless otherwise provided in Section 301 with respect to any series of Securities, The Depository Trust Company shall be the initial Depositary for any series of Securities, until a successor shall have been appointed and become such pursuant to the applicable provisions of this Indenture and, thereafter, “Depositary” shall mean or include such successor.
          “Dollar” or “$” means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private debts.
          “Dollar Equivalent of the Currency Unit” has the meaning specified in Section 312(g).
          “Dollar Equivalent of the Foreign Currency” has the meaning specified in Section 312(f).
          “Election Date” has the meaning specified in Section 312(h).
          “Euro” means the lawful currency of the member states of the European Union that adopt the single currency in accordance with the Treaty establishing the European Community, as amended by the Treaty on European Union.
          “Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear System (or any successor securities clearing system).
          “Event of Default” has the meaning specified in Section 501.
          “Exchange Date” has the meaning specified in Section 304.
          “Exchange Rate Agent” means, with respect to Securities of or within any series, unless otherwise specified with respect to any Securities pursuant to Section 301, a New York Clearing House bank, designated pursuant to Section 301 or Section 313.
          “Exchange Rate Officers’ Certificate” means a certificate setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if any) and interest, if any (on an aggregate basis and on the basis of a Security having the lowest denomination principal amount determined in accordance with Section 302 in the relevant Currency), payable with respect to a Security of any series on the basis of such Market Exchange Rate, sent (in the case of a telex) or signed (in the case of a certificate) by any two directors of the Company or any two directors, or any director and secretary, of the Guarantor, as applicable.

 

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          “Federal Bankruptcy Code” means the Bankruptcy Act of Title 11 of the United States Code, as amended from time to time.
          “Foreign Currency” means any Currency other than Currency of the United States.
          “Government Obligations” means, unless otherwise specified with respect to any series of Securities pursuant to Section 301, securities which are (i) direct obligations of the government which issued the Currency in which the Securities of a particular series are payable or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the government which issued the Currency in which the Securities of such series are payable, the payment of which is unconditionally guaranteed by such government, which, in either case, are full faith and credit obligations of such government payable in such Currency and are not callable or redeemable at the option of the issuer thereof and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government Obligation held by such custodian for the account of the holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest or principal of the Government Obligation evidenced by such depository receipt.
          “Guarantee” means the unconditional guarantee by the Guarantor of any Security of any series authenticated and delivered pursuant to this Indenture either (i) if specified, as contemplated by Section 301, to be applicable to Securities of such series and not endorsed on such Securities pursuant to Article Sixteen hereof, or (ii) in all other cases, endorsed on such Security.
          “Guarantor” means the Person named as the “Guarantor” 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 “Guarantor” shall mean such successor Person.
          “Guarantor Request” and “Guarantor Order” mean, respectively, a written request or order signed in the name of the Guarantor by any two directors, or any director and secretary, of the Guarantor, and delivered to the Trustee.
          “Holder” means, in the case of a Registered Security, the Person in whose name a Security is registered in the Security Register and, in the case of a Bearer Security, the bearer thereof and, when used with respect to any coupon, shall mean the bearer thereof.
          “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, and shall include the terms of particular series of Securities established as contemplated by Section 301; provided, however, that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by one or

 

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more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities for which such Person is Trustee established as contemplated by Section 301, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered after such Person had become such Trustee but to which such Person, as such Trustee, was not a party.
          “Indexed Security” means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance.
          “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 at the rate prescribed in such Original Issue Discount Security.
          “Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
          “Lien” means any pledge, mortgage, lien, charge, encumbrance or security interest.
          “Margin Stock” has the meaning specified in Regulation U of the Board of Governors of the U.S. Federal Reserve System.
          “Market Exchange Rate” means, unless otherwise specified with respect to any Securities pursuant to Section 301, (i) for any conversion involving a currency unit on the one hand and Dollars or any Foreign Currency on the other, the exchange rate between the relevant currency unit and Dollars or such Foreign Currency calculated by the method specified pursuant to Section 301 for the Securities of the relevant series, (ii) for any conversion of Dollars into any Foreign Currency, the noon (New York City time) buying rate for such Foreign Currency for cable transfers quoted in New York City as certified for customs purposes by the Federal Reserve Bank of New York and (iii) for any conversion of one Foreign Currency into Dollars or another Foreign Currency, the spot rate at noon local time in the relevant market at which, in accordance with normal banking procedures, the Dollars or Foreign Currency into which conversion is being made could be purchased with the Foreign Currency from which conversion is being made from major banks located in either New York City, London or any other principal market for Dollars or such purchased Foreign Currency, in each case determined by the Exchange Rate Agent. Unless otherwise specified with respect to any Securities pursuant to Section 301, in the event of the unavailability of any of the exchange rates provided for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more major banks in New York City, London or another principal market for the Currency in question, or such other quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is more than one market for dealing in any Currency by reason of foreign exchange regulations or otherwise, the market to be used in respect of such Currency shall be

 

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that upon which a non-resident issuer of securities designated in such Currency would purchase such Currency in order to make payments in respect of such securities.
          “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, notice of redemption, notice of option to elect repayment or otherwise.
          “Officers’ Certificate” means a certificate signed by any two directors of the Company or by any two directors, or any director and secretary, of the Guarantor, as applicable, that complies with the requirements of Section 314(e) of the Trust Indenture Act and is delivered to the Trustee.
          “Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Company or the Guarantor or who may be an employee of or other counsel for the Company or the Guarantor.
          “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:
     (i) Securities theretofore cancelled by the Trustee or Security Registrar or delivered to the Trustee or Security Registrar for cancellation;
     (ii) Securities, or portions thereof, for whose payment or redemption or repayment at the option of the Holder money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company or the Guarantor) in trust or set aside and segregated in trust by the Company or the Guarantor (if the Company shall act as its own, or authorize the Guarantor to act as, Paying Agent) for the Holders of such Securities and any coupons appertaining thereto; 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;
     (iii) Securities, except to the extent provided in Sections 1402 and 1403, with respect to which the Company or the Guarantor has effected defeasance and/or covenant defeasance as provided in Article Fourteen; and
     (iv) 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;

 

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provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, and for the purpose of making the calculations required by TIA Section 313, (i) the principal amount of an Original Issue Discount Security that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the amount of principal thereof that would be (or shall have been declared to be) due and payable, at the time of such determination, upon a declaration of acceleration of the maturity thereof pursuant to Section 502, (ii) the principal amount of any Security denominated in a Foreign Currency that may be counted in making such determination or calculation and that shall be deemed Outstanding for such purpose shall be equal to the Dollar equivalent, determined as of the date such Security is originally issued by the Company as set forth in an Exchange Rate Officers’ Certificate delivered to the Trustee, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent as of such date of original issuance of the amount determined as provided in clause (i) above) of such Security, (iii) the principal amount of any Indexed Security that may be counted in making such determination or calculation and that shall be deemed outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided with respect to such Security pursuant to Section 301, and (iv) Securities owned by the Company or the Guarantor or any other obligor upon the Securities or any Affiliate of the Company or the Guarantor 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 making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee 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 the Guarantor or any other obligor upon the Securities or any Affiliate of the Company or the Guarantor or such other obligor.
          “Paying Agent” means any Person (including the Company acting as Paying Agent) authorized by the Company to pay the principal of (or premium, if any) or interest, if any, on any Securities on behalf of the Company.
          “Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
          “Place of Payment” means, when used with respect to the Securities of or within any series, the place or places where the principal of (and premium, if any) and interest, if any, on such Securities are payable as specified as contemplated by Sections 301 and 1002.
          “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 or a Security to which a mutilated, destroyed, lost or stolen coupon appertains shall be deemed to evidence the same debt

 

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as the mutilated, destroyed, lost or stolen Security or the Security to which the mutilated, destroyed, lost or stolen coupon appertains, as the case may be.
          “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, and the net book value of which on the date as of which the determination is being made exceeds, with respect to a series of Securities, a certain percentage, set forth in the Board Resolution, Officer’s Certificate or supplemental indenture establishing such series, 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 Guarantor, is not of material importance to the total business conducted by the Guarantor and the Restricted Subsidiaries as an entirety or (b) any portion of a particular mine, plant or facility which, in the opinion of the Guarantor is not of material importance to the use or operation of such mine, plant or facility.
          “Project Finance Indebtedness” means any indebtedness incurred in relation to any asset for the purposes of financing the whole or any part of the acquisition, creation, construction, operation, improvement or development of such asset where the financial institution(s) or other persons to whom such indebtedness is owed (and any trustees or other agents therefor) has or have recourse to (i) the applicable project borrower (where such project borrower is formed solely or principally for the purpose of the relevant project) and any or all of its rights and assets and/or (ii) such asset (or any derivative asset thereof) but, in either case, does not or do not have recourse to the Guarantor or any Subsidiary other than in respect of (a) the Guarantor or such Subsidiary’s interests in the equity or indebtedness of the applicable project borrower or the interests of the Guarantor or any other Subsidiary in the equity or indebtedness of any Subsidiary whose primary asset is its direct or indirect interests in the equity or indebtedness of the applicable project borrower, (b) the rights of the applicable project borrower under any contract with the Guarantor or any other Subsidiary or (c) claims for indemnity or damages arising from breach of representations or covenants made by the Guarantor or such Subsidiary to such financial institution or other person.
          “Redemption Date”, when used with respect to any Security to be redeemed, in whole or in part, 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.
          “Registered Security” means any Security registered in the Security Register.
          “Regular Record Date” for the interest payable on any Interest Payment Date on the Registered Securities of or within any series means the date specified for that purpose as contemplated by Section 301.
          “Repayment Date” means, when used with respect to any Security to be repaid at the option of the Holder, the date fixed for such repayment pursuant to this Indenture.

 

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          “Repayment Price” means, when used with respect to any Security to be repaid at the option of the Holder, the price at which it is to be repaid pursuant to this Indenture.
          “Responsible Officer”, when used with respect to the Trustee, means any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or assistant trust officer, or any other officer of the Trustee customarily performing functions similar to those performed by any of the above-designated officers, and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
          “Restricted Securities” has the meaning specified in Section 1006.
          “Restricted Subsidiary” means any Subsidiary wholly owned by the Guarantor 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, the Guarantor and their 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. In the event that there shall be at any time a question as to whether a Subsidiary is described in the foregoing clause (a) or (b) or an exception described herein, such matter shall be determined for all purposes of this Indenture by a Board Resolution.
          “Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture; provided, however, that if at any time there is more than one Person acting as Trustee under this Indenture, “Securities” with respect to the Indenture as to which such Person is Trustee shall have the meaning stated in the first recital of this Indenture and shall more particularly mean Securities authenticated and delivered under this Indenture, exclusive, however, of Securities of any series as to which such Person is not Trustee.
          “Security Register” and “Security Registrar” have the respective meanings specified in Section 305.
          “Special Record Date” for the payment of any Defaulted Interest on the Registered Securities of or within any series 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 or a coupon representing such installment of interest as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable, as such date may be extended pursuant to the provisions of Section 308.
          “Subsidiary” means any corporation of which at the time of determination the Guarantor, directly and/or indirectly through one or more Subsidiaries, owns more than 50% of the shares of Voting Stock.

 

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          “Taxing Jurisdiction” means South Africa or the Isle of Man, any other jurisdiction where the Company or the Guarantor is tax resident or in which the Company does business, the government of a jurisdiction in which any successor to the Company is organized or tax resident or any political subdivision or taxing authority thereof or therein.
          “Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed, except as provided in Section 905 provided, however, that in the event the Trust Indenture Act is amended after such date, “Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939 as so amended.
          “Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture 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; provided, however, that if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean only the Trustee with respect to Securities of that series.
          “United States” means, unless otherwise specified with respect to any Securities pursuant to Section 301, the United States of America (including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
          “United States person” means, unless otherwise specified with respect to any Securities pursuant to Section 301, an individual who is a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States or an estate or trust the income of which is subject to United States federal income taxation regardless of its source.
          “Valuation Date” has the meaning specified in Section 312(c).
          “Voting Stock” means stock of the class or classes having general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of a corporation (irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency).
          “Yield to Maturity” means the yield to maturity, computed at the time of issuance of a Security (or, if applicable, at the most recent redetermination of interest on such Security) and as set forth in such Security in accordance with generally accepted United States bond yield computation principles.
          SECTION 102. Compliance Certificates and Opinions.
          Upon any application or request by the Company or the Guarantor to the Trustee to take any action under any provision of this Indenture, the Company or the Guarantor, as the case may be, shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture (including any covenant compliance with which constitutes a condition precedent) relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to

 

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which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
          Every certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture (other than pursuant to 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 covenant or condition 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 a director or an officer of the Company or the Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such director or 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, a director or officer of the Company or the Guarantor, as the case may be, stating that the information with respect to such factual matters is in the possession of the Company or the Guarantor, as the case may be, 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.

 

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          SECTION 104. Acts of Holders.
          (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of the Outstanding Securities of all series or one or more series, as the case may be, may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing. If Securities of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of such series may, alternatively, be embodied in and evidenced by the record of Holders of Securities of such series voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly called and held in accordance with the provisions of Article Fifteen, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company and the Guarantor. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee, the Company and the Guarantor and any agent of the Trustee, the Company or the Guarantor, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 1506.
          (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by 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 authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
          (c) The principal amount and serial numbers of Registered Securities held by any Person, and the date of holding the same, shall be proved by the Security Register.
          (d) The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may be proved by the production of such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary reasonably acceptable to the Company and the Guarantor, wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such Person had on deposit with such depositary, or exhibited to it, the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by the Trustee to be satisfactory. The Trustee, the Company and the Guarantor may assume that such ownership of any Bearer Security continues until (1) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, or (2) such Bearer Security is

 

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produced to the Trustee by some other Person, or (3) such Bearer Security is surrendered in exchange for a Registered Security, or (4) such Bearer Security is no longer Outstanding. The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may also be proved in any other manner that the Trustee deems sufficient.
          (e) If the Company or the Guarantor shall solicit from the Holders of Registered Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company or the Guarantor, as the case may be, may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but neither the Company nor the Guarantor shall have any obligation to do so. Notwithstanding TIA Section 316(c), such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record date.
          (f) 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, the Company or the Guarantor in reliance thereon, whether or not notation of such action is made upon such Security.
          SECTION 105. Notices, etc. to Trustee, the Company and the Guarantor.
          Any notice or communication shall be sufficiently given to the Trustee, the Company or the Guarantor, as the case may be, if written and (a) if delivered in person, when received or (b) if mailed by registered or overnight mail, the official postmark date or (c) as between the Company, the Guarantor or the Trustee, if sent by facsimile transmission, when transmission is confirmed, in each case addressed as follows:
if to the Company:
AngloGold Ashanti Holdings Finance plc
1st Floor
Atlantic House
4-8 Circular Road
Douglas
Isle of Man IM1 1GA
Telephone No.: +44 (1624) 697 280

 

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Facsimile No.: +44 (1624) 613 874
if to the Guarantor:
AngloGold Ashanti Limited
76 Jeppe Street
Newtown, Johannesburg, 2001
PO Box 62117, Marshalltown, 2107
South Africa
Telephone No.: +27 (11) 637-6000
Facsimile No.: +27 (11) 637-6666
Attention: The Company Secretary
if to the Trustee:
101 Barclay Street, 4E
New York, New York 10286
United States of America
Telephone No.: +1 212 815 5587
Facsimile No.: +1 212 815 5366
Attention: Global Finance Americas, International Team
          The Trustee agrees to accept and act upon facsimile or email transmission of written instructions pursuant to this Indenture; 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.
          The Company, the Guarantor or the Trustee by written notice to the other may designate additional or different addresses for subsequent notices or communications.
          SECTION 106. Notice to Holders; Waiver.
          Where this Indenture provides for notice of any event to Holders of Registered Securities by the Company, the Guarantor or the Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders of Registered Securities 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 of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such notice.
          In case, by reason of the suspension of or irregularities in regular mail service or by reason of any other cause, it shall be impractical to mail notice of any event to Holders of Registered Securities when such notice is required to be given pursuant to any provision of this

 

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Indenture, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be sufficient giving of such notice for every purpose hereunder.
          Except as otherwise expressly provided herein or otherwise specified with respect to any Securities pursuant to Section 301, where this Indenture provides for notice to Holders of Bearer Securities of any event, such notice shall be sufficiently given to Holders of Bearer Securities if published in an Authorized Newspaper in The City of London and in such other city or cities as may be specified in such Securities on a Business Day at least twice, the first such publication to be not earlier than the earliest date, and not later than the latest date, prescribed for the giving of such notice. Any such notice shall be deemed to have been given on the date of the first such publication.
          In case, by reason of the suspension of publication of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause, it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder. Neither the failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of such notice with respect to other Holders of Bearer Securities or the sufficiency of any notice to Holders of Registered Securities given as provided herein.
          Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language.
          Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
          SECTION 107. Effect of Headings and Table of Contents.
          The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
          SECTION 108. Successors and Assigns.
          All covenants and agreements in this Indenture by the Company or the Guarantor shall bind their successors and assigns, whether so expressed or not.
          SECTION 109. Separability Clause.
          In case any provision in this Indenture or in any Security or coupon 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.

 

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          SECTION 110. Benefits of Indenture.
          Nothing in this Indenture or in the Securities or coupons or any Guarantee, express or implied, shall give to any Person, other than the parties hereto, any Authenticating Agent, any Paying Agent, any Securities Registrar and their successors hereunder and the Holders of Securities or coupons, any benefit or any legal or equitable right, remedy or claim under this Indenture.
          SECTION 111. Governing Law.
          This Indenture and the Securities and coupons shall be governed by and construed in accordance with the law of the State of New York. This Indenture is subject to the provisions of the Trust Indenture Act that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions.
          SECTION 112. Legal Holidays.
          In any case where any Interest Payment Date, Redemption Date, sinking fund payment date or Stated Maturity or 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 any Security or coupon other than a provision in the Securities of any series which specifically states that such provision shall apply in lieu of this Section), payment of principal (or premium, if any) or interest, 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 sinking fund payment date, or at the Stated Maturity or Maturity; provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or Maturity, as the case may be.
          SECTION 113. Submission to Jurisdiction; Appointment of Agent for Service of Process.
          Each of the Company and the Guarantor hereby appoints AngloGold Ashanti North America Inc. acting through its office at 7400 East Orchard Road, Suite 350, Greenwood Village, Colorado 80111 as its authorized agent (the “Authorized Agent”) upon which process may be served in any legal action or proceeding against it with respect to their respective obligations under this Indenture, the Securities of any series or the Guarantee, instituted in any federal or state court in the Borough of Manhattan, The City of New York by the Holder of any Security and each of the Company and the Guarantor agrees that service of process upon such Authorized Agent, together with written notice of said service to the Company or the Guarantor, as the case may be, by the Person serving the same addressed as provided in Section 105, shall be deemed in every respect effective service of process upon it in any such legal action or proceeding. Such designation shall be

 

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irrevocable until all amounts in respect of the principal of and any premium and interest due and to become due on or in respect of all the Securities issued under this Indenture have been paid by the Company or the Guarantor, as the case may be, to the Trustee pursuant to the terms hereof, the Securities and the Guarantee. Notwithstanding the foregoing, each of the Company and the Guarantor reserves the right to appoint another Person, selected in its discretion, as a successor Authorized Agent, and upon acceptance of such consent to service of process by such a successor, the designation of the prior Authorized Agent shall terminate. Each of the Company and the Guarantor shall give written notice to the Trustee and all Holders of the designation by it of a successor Authorized Agent. If for any reason AngloGold Ashanti North America Inc. ceases to be able to act as the Authorized Agent, each of the Company and the Guarantor will appoint a successor Authorized Agent in accordance with the preceding sentence. Each of the Company and the Guarantor further agrees to take any and all action, including the filing of any and all documents and instruments as may be necessary to continue such designation of such agent in full force and effect until this Indenture has been satisfied and discharged. Service of process upon the Authorized Agent addressed to it at the address set forth above, as such address may be changed by notice given by the Authorized Agent to the Trustee, together with written notice of such service mailed or delivered to the Company or the Guarantor, as the case may be, shall be deemed, in every respect, effective service of process on the Company or the Guarantor, as the case may be.
     Each of the parties hereto hereby irrevocably consents to the jurisdiction of the courts of the State of New York and of any Federal Court located in the Borough of Manhattan in the State of New York in connection with any action, suit or other proceeding arising out of or relating to this Indenture or any action taken or omitted hereunder, and waives any claim of forum non conveniens and any objections as to laying of venue.
          SECTION 114. Waiver of Jury Trial.
          EACH OF THE COMPANY, THE 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.
          SECTION 115. Force Majeure.
          In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of god, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
ARTICLE TWO
SECURITY FORMS
          SECTION 201. Forms Generally.
          The Registered Securities, if any, of each series and the Bearer Securities, if any, of each series and related coupons shall be in substantially the forms as shall be established by or

 

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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 such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the directors and officers executing such Securities or coupons, as evidenced by their execution of the Securities or coupons. If the forms of Securities or coupons of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by a director 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 or coupons. Any portion of the text of any Security may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Security.
          Unless otherwise specified as contemplated by Section 301, Securities in bearer form shall have interest coupons attached.
          If Article Sixteen is to be applicable to Securities of any series, established as contemplated by Section 301, then Securities of each such series shall bear a Guarantee in substantially the form set forth in Section 204. For any other series of Securities, the Guarantee shall be endorsed on the Securities and shall be substantially in the form established by or pursuant to Board Resolutions of the Guarantor in accordance with Section 301 or one or more indentures supplemental hereto. Notwithstanding the foregoing, the Guarantee or the Guarantees to be endorsed on the Securities of any series may have such appropriate insertions, omissions, substitutions and other corrections from the forms thereof referred to above as are required or permitted by this Indenture and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the directors or officers delivering the same, in each case as evidenced by such delivery.
          The Trustee’s certificate of authentication on all Securities shall be in substantially the form set forth in this Article.
          The definitive Securities and coupons 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 or coupons.
          SECTION 202. Form of Trustee’s Certificate of Authentication.
          Subject to Section 611, the Trustee’s certificate of authentication shall be in substantially the following form:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
          Dated: ____________________
          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,
as Trustee
 		  
  By      
    Authorized Signatory   
       
 

          SECTION 203. Securities Issuable in Global Form.
          If Securities of or within a series are issuable in global form, as specified as contemplated by Section 301, then, notwithstanding clause (8) of Section 301, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities of such series from time to time endorsed thereon and that the aggregate amount of Outstanding Securities of such series represented thereby may from time to time be increased or decreased to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon instructions given by such Person or Persons as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant to Section 303 or Section 304. Subject to the provisions of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Company Order. If a Company Order pursuant to Section 303 or Section 304 has been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 102 and need not be accompanied by an Opinion of Counsel.
          The provisions of the last sentence of the penultimate paragraph of Section 303 shall apply to any Security represented by a Security in global form if such Security was never issued and sold by the Company and the Company delivers to the Trustee the Security in global form together with written instructions (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of the penultimate paragraph of Section 303.
          Notwithstanding the provisions of Section 307, unless otherwise specified as contemplated by Section 301, payment of principal of (and premium, if any) and interest, if any, on any Security in permanent global form shall be made to the Person or Persons specified therein.
          Notwithstanding the provisions of Section 309 and except as provided in the preceding paragraph, the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor and the Trustee shall treat as the Holder of such principal amount of Outstanding Securities represented by a permanent global Security (i) in the case of a permanent global Security in registered form, the Holder of such permanent global Security in registered form, or (ii) in the case of a permanent global Security in bearer form, Euroclear or Clearstream.

 

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          SECTION 204. Form of Guarantee.
          The Guarantee afforded by Article Sixteen shall be endorsed on the Securities of any applicable series substantially as follows:
          For value received, AngloGold Ashanti Limited, a corporation duly organized and existing under the laws of South Africa (herein called the “Guarantor”, which term includes any successor Person under the Indenture (the “Indenture”) referred to in the Security on which this Guarantee is endorsed), has unconditionally guaranteed, pursuant to the terms of the Guarantee contained in Article Sixteen of the Indenture, the due and punctual payment of the principal (including any amount due in respect of original issue discount) of and any premium and interest on and Additional Amounts with respect to such Security, and the due and punctual payment of any sinking fund payments provided for pursuant to the terms of such Security, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder, in accordance with the terms of such Security and the Indenture.
          All payments pursuant to this Guarantee shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of the Isle of Man or South Africa or the jurisdiction of organization, tax residence or place of business of the Company, any Guarantor or any successor to the Company or the Guarantor, or any political subdivision or taxing authority thereof or therein, unless such taxes, duties, assessments or governmental charges are required by the Isle of Man or South Africa or such other jurisdiction or any such subdivision or authority to be withheld or deducted. In that event, the Guarantor will pay such Additional Amounts as will result (after deduction of such taxes, duties, assessments or governmental charges and any additional taxes, duties, assessments or governmental charges payable in respect of such) in the payment to the Holder of the Security on which this Guarantee is endorsed of the amounts which would have been payable in respect of the Guarantee thereof had no such withholding or deduction been required, subject to certain exceptions as set forth in Article Ten of the Indenture.
          The obligations of the Guarantor to the Holders of the Securities and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article Sixteen of the Indenture, and reference is hereby made to such Article and Indenture for the precise terms of the Guarantee.
          The Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Security upon which this Guarantee is endorsed shall have been executed by the Trustee under the Indenture by the manual signature of one of its authorized signatories.
          Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Indenture.

 

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          IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed.
         
  Dated:

ANGLOGOLD ASHANTI LIMITED
 		  
  By:      
    Name:      
    Title   
 
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 one or more Board Resolutions or pursuant to authority granted by one or more Board Resolutions and, subject to Section 303, set forth in, 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, any or all of the following, as applicable (each of which (except for the matters set forth in clauses (1), (2) and (17) below), if so provided, may be determined from time to time by the Company with respect to unissued Securities of the series and set forth in such Securities of the series when issued from time to time):
     (1) the title of the Securities of the series (which shall distinguish the Securities of the series from all other series of Securities);
     (2) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
     (3) the date or dates, or the method by which such date or dates will be determined or extended, on which the principal of the Securities of the series is payable;
     (4) the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates shall be determined, the date or dates from which such interest shall accrue, or the method by which such date or dates shall be determined, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date, if any, for the interest payable on any Registered Security on any

 

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Interest Payment Date, or the method by which such date or dates shall be determined, and the basis upon which interest shall be calculated if other than on the basis of a 360-day year of twelve 30-day months;
     (5) the place or places, if any, other than or in addition to the Borough of Manhattan, The City of New York, where the principal of (and premium, if any) and interest, if any, on Securities of the series shall be payable, where any Registered Securities of the series may be surrendered for registration of transfer, where Securities of the series may be surrendered for exchange, where Securities of the series that are exchangeable may be surrendered for exchange, as applicable and, if different than the location specified in Section 106, the place or places where notices or demands to or upon the Company in respect of the Securities of the series and this Indenture may be served;
     (6) the period or periods within which, the price or prices at which, the Currency in which, and other terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company, if the Company is to have that option;
     (7) the obligation, if any, of the Company to redeem, repay or purchase Securities of the series pursuant to any sinking fund or analogous provision or at the option of a Holder thereof, and the period or periods within which, the price or prices at which, the Currency in which, and other terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
     (8) if other than denominations of $1,000 and any integral multiple thereof, the denomination or denominations in which any Registered Securities of the series shall be issuable and, if other than denominations of $5,000, the denomination or denominations in which any Bearer Securities of the series shall be issuable;
     (9) if other than the Trustee, the identity of each Security Registrar and/or Paying Agent;
     (10) if other than the principal amount thereof, the portion of the principal amount of Securities of the series that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502 or the method by which such portion shall be determined;
     (11) if other than Dollars, the Currency in which payment of the principal of (or premium, if any) or interest, if any, on the Securities of the series shall be payable or in which the Securities of the series shall be denominated and the particular provisions applicable thereto in accordance with, in addition to or in lieu of any of the provisions of Section 312;
     (12) whether the amount of payments of principal of (or premium, if any) or interest, if any, on the Securities of the series may be determined with reference to an index, formula or other method (which index, formula or method may be based, without

 

25

limitation, on one or more Currencies, commodities, equity indices or other indices), and the manner in which such amounts shall be determined;
     (13) whether the principal of (or premium, if any) or interest, if any, on the Securities of the series are to be payable, at the election of the Company, the Guarantor or a Holder thereof, in a Currency other than that in which such Securities are denominated or stated to be payable, the period or periods within which (including the Election Date), and the terms and conditions upon which, such election may be made, and the time and manner of determining the exchange rate between the Currency in which such Securities are denominated or stated to be payable and the Currency in which such Securities are to be so payable, in each case in accordance with, in addition to or in lieu of any of the provisions of Section 312;
     (14) the designation of the initial Exchange Rate Agent, if any;
     (15) the applicability, if any, of Sections 1402 and/or 1403 to the Securities of the series and any provisions in modification of, in addition to or in lieu of any of the provisions of Article Fourteen that shall be applicable to the Securities of the series;
     (16) provisions, if any, granting special rights to the Holders of Securities of the series, including any provisions requiring the Company to make offers to repurchase Securities, upon the occurrence of such events as may be specified;
     (17) any deletions from, modifications of or additions to the Events of Default or covenants (including any deletions from, modifications of or additions to Section 1008) of the Company or the Guarantor, as the case may be, with respect to Securities of the series, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein;
     (18) whether Securities of the series are to be issuable as Registered Securities, Bearer Securities (with or without coupons) or both, any restrictions applicable to the offer, sale or delivery of Bearer Securities, whether any Securities of the series are to be issuable initially in temporary global form and whether any Securities of the series are to be issuable in permanent global form with or without coupons and, if so, whether beneficial owners of interests in any such permanent global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 305, whether Registered Securities of the series may be exchanged for Bearer Securities of the series (if permitted by applicable laws and regulations), whether Bearer Securities of the series may be exchanged for Registered Securities of such series, and the circumstances under which and the place or places where any such exchanges may be made and if Securities of the series are to be issuable in global form, the identity of any initial depository therefor;
     (19) the date as of which any Bearer Securities of the series and any temporary global Security representing Outstanding Securities of the series shall be dated if other than the date of original issuance of the first Security of the series to be issued;

 

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     (20) the Person to whom any interest on any Registered 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, the manner in which, or the Person to whom, any interest on any Bearer Security of the series shall be payable, if otherwise than upon presentation and surrender of the coupons appertaining thereto as they severally mature, and the extent to which, or the manner in which, any interest payable on a temporary global Security on an Interest Payment Date will be paid if other than in the manner provided in Section 304;
     (21) if Securities of the series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and/or terms of such certificates, documents or conditions;
     (22) if the Securities of the series are to be issued upon the exercise of warrants, the time, manner and place for such Securities to be authenticated and delivered;
     (23) whether, under what circumstances and the Currency in which the Company or the Guarantor will pay Additional Amounts as contemplated by Section 1005 on the Securities of the series to any Holder who is not a United States person (including any modification to the definition of such term) in respect of any tax, assessment or governmental charge and, if so, whether the Company or the Guarantor will have the option to redeem such Securities rather than pay such Additional Amounts (and the terms of any such option);
     (24) if the Securities of the series are to be exchangeable for any securities of any Person (including the Guarantor), the terms and conditions upon which such Securities will be so exchangeable;
     (25) if the Securities will be entitled to the benefit of the Guarantee afforded by Article Sixteen or, if not, the form of the Guarantee to be endorsed on the Securities;
     (26) if the Securities of the series or the Guarantee therefor are to be subordinated to any other Debt, the terms and conditions of such subordination;
     (27) the percentages applicable to each of (i) the definition of Principal Property, (ii) Section 1006 and (iii) Section 1007(a) for such Securities; and
          (28) any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to the series (which terms shall not be inconsistent with the requirements of the Trust Indenture Act or the provisions of this Indenture).
          All Securities of any one series and the coupons appertaining to any Bearer Securities of such series shall be substantially identical except, in the case of Registered Securities, as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution (subject to Section 303) and set forth in such Officers’ Certificate or in any such indenture supplemental hereto. Not all Securities of any one series need be issued at the

 

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same time, and, unless otherwise provided, a series may be reopened without the consent of the Holders for issuances of additional Securities of such series; provided, however, that in the case of Registered Securities offered for sale in the United States, no such additional Securities may be issued unless they are fungible with the Securities of such series for U.S. federal income tax purposes.
          If any of the terms of the series are established by action taken pursuant to one or more Board Resolutions, such Board Resolutions shall be 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 in such denominations as shall be specified as contemplated by Section 301. With respect to Securities of any series denominated in Dollars, in the absence of any such provisions, the Registered Securities of such series, other than Registered Securities issued in global form (which may be of any denomination), shall be issuable in denominations of $1,000 and any integral multiple thereof and the Bearer Securities of such series, other than the Bearer Securities issued in global form (which may be of any denomination), shall be issuable in a denomination of $5,000.
          SECTION 303. Execution, Authentication, Delivery and Dating.
          The Securities and any coupons appertaining thereto and the Guarantees to be noted or endorsed on the Securities shall be executed on behalf of the Company by any two directors of the Company, and on behalf of the Guarantor by any two directors of the Guarantor. The signature of any of these persons on the Securities or coupons and the Guarantees, as the case may be, may be the manual or facsimile signatures of the present or any future such director or officer and may be imprinted or otherwise reproduced on the Securities. If Article Sixteen is to be applicable to the Securities of any series, established as contemplated by Section 301, then the Guarantees noted or endorsed on the Securities of such series shall be executed as provided in Section 1602.
          Securities or coupons or any Guarantee bearing the manual or facsimile signatures of individuals who were at any time the proper directors or officers of the Company or the Guarantor, as the case may be, shall bind the Company or the Guarantor, as the case may be, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or Guarantee or did not hold such offices at the date of such Securities or coupons or such Guarantee.
          At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series together with any coupon appertaining thereto, executed by the Company, having Guarantees noted or endorsed thereon executed by the Guarantor, to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities; provided, however, that, in connection with its original issuance, no Bearer Security shall be mailed or otherwise delivered to any location in the United States; and provided further that, unless otherwise specified with

 

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respect to any series of Securities pursuant to Section 301, a Bearer Security may be delivered in connection with its original issuance only if the Person entitled to receive such Bearer Security shall have furnished a certificate in the form set forth in Exhibit A-1 to this Indenture, dated no earlier than 15 days prior to the earlier of the date on which such Bearer Security is delivered and the date on which any temporary Security first becomes exchangeable for such Bearer Security in accordance with the terms of such temporary Security and this Indenture. If any Security shall be represented by a permanent global Security, then, for purposes of this Section and Section 304, the notation of a beneficial owner’s interest therein upon original issuance of such Security or upon exchange of a portion of a temporary global Security shall be deemed to be delivery in connection with its original issuance of such beneficial owner’s interest in such permanent global Security. Except as permitted by Section 306, the Trustee shall not authenticate and deliver any Bearer Security unless all appurtenant coupons for interest then matured have been detached and cancelled. If not all the Securities of any series are to be issued at one time and if the Board Resolution, Officer’s Certificate or supplemental indenture establishing such series shall so permit, such Company Order may set forth procedures acceptable to the Trustee for the issuance of such Securities and determining terms of particular Securities of such series such as interest rate, stated maturity, date of issuance and date from which interest shall accrue.
          In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be given, and (subject to TIA Sections 315(a) through 315(d)) shall be fully protected in relying upon, an Opinion of Counsel stating:
     (a) that the form or forms of such Securities and any coupons and Guarantee have been established in conformity with the provisions of this Indenture;
     (b) that the terms of such Securities and any coupons and Guarantee have been established in conformity with the provisions of this Indenture;
     (c) that such Securities, together with any coupons appertaining thereto and the Guarantee thereof, when completed by appropriate insertions and executed and delivered by the Company and the Guarantor, as applicable, to the Trustee for authentication in accordance with this Indenture, authenticated and delivered by the Trustee in accordance with this Indenture and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute the legal, valid and binding obligations of the Company and the Guarantor, respectively, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting the enforcement of creditors’ rights, to general equitable principles and to such other qualifications as such counsel shall conclude do not materially affect the rights of Holders of such Securities and any coupons; and
     (d) all conditions precedent in respect of the execution and delivery by the Company and the Guarantor, as applicable, of such Securities have been complied with.

 

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          Notwithstanding the provisions of Section 301 and of the preceding two paragraphs, if not all the Securities of any series are to be 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 the preceding two paragraphs prior to or at the time of issuance of each Security, but such documents shall be delivered prior to or at the time of issuance of the first Security of such series.
          The Trustee shall not be required to authenticate and deliver any 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.
          Each Registered Security shall be dated the date of its authentication and each Bearer Security shall be dated as of the date specified as contemplated by Section 301.
          No Security or coupon, or Guarantee, 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 duly executed by the Trustee by manual signature of an authorized officer, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security, coupon and Guarantee have been duly authenticated and delivered hereunder and are entitled to the benefits of this Indenture. 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 310 together with a written statement (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security, and the related Guarantee, shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture (including, if applicable, the Guarantee pursuant to Article Sixteen).
          The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute delivery of the Guarantee endorsed or noted thereon on behalf of the Guarantor. The Guarantor by its execution of this Indenture hereby authorizes the Company, in the name and on behalf of the Guarantor, to confirm the applicable Guarantee to the Holder of each Security authenticated and delivered hereunder by its execution and delivery of each such Security, with such Guarantee noted or endorsed thereon, authenticated and delivered by the Trustee. When delivered pursuant to the provisions of Section 303 hereof, only Guarantees endorsed or noted on the Securities shall bind the Guarantor, notwithstanding the fact that the Guarantee does not bear the signature of the Guarantor.
          SECTION 304. Temporary Securities.
          Pending the preparation of definitive Securities of any series, the Company may execute, the Guarantor may execute its Guarantee to be noted or endorsed on, 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

 

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issued, in registered form or, if authorized, in bearer form with one or more coupons or without coupons, and with such appropriate insertions, omissions, substitutions and other variations as conclusively the directors or officers executing such Securities, or Guarantees or notations of the Guarantee pursuant to Article Sixteen, as applicable, may determine, as conclusively evidenced by their execution of such Securities or Guarantees or notations, as the case may be. Such temporary Securities may be in global form.
          Except in the case of temporary Securities in global form (which shall be exchanged in accordance with the provisions of the following paragraphs), 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 (accompanied by any unmatured coupons appertaining thereto), the Company shall execute, and the Guarantor shall execute the Guarantee noted or endorsed on, and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations; provided, however, that no definitive Bearer Security shall be delivered in exchange for a temporary Registered Security; and provided further that a definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth in Section 303. 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.
          If temporary Securities of any series are issued in global form, any such temporary global Security shall, unless otherwise provided therein, be delivered to the London office of a depositary or common depositary (the “Common Depositary”), for the benefit of Euroclear and Clearstream, for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct).
          Without unnecessary delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such temporary global Security (the “Exchange Date”), the Company shall deliver to the Trustee definitive Securities, in aggregate principal amount equal to the principal amount of such temporary global Security, executed by the Company and, as applicable, the Guarantor. On or after the Exchange Date such temporary global Security shall be surrendered by the Common Depositary to the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge and the Trustee shall authenticate and deliver, in exchange for each portion of such temporary global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such temporary global Security to be exchanged. The definitive Securities to be delivered in exchange for any such temporary global Security shall be in bearer form, registered form, permanent global bearer form or permanent global registered form, or any combination thereof, as specified as contemplated by Section 301, and, if any combination thereof is so specified, as requested by the beneficial owner thereof; provided, however, that, unless otherwise specified in such temporary global Security, upon such presentation by the Common Depositary, such temporary global

 

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Security is accompanied by a certificate dated the Exchange Date or a subsequent date and signed by Euroclear as to the portion of such temporary global Security held for its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream as to the portion of such temporary global Security held for its account then to be exchanged, each in the form set forth in Exhibit A-2 to this Indenture (or in such other form as may be established pursuant to Section 301); and provided further that definitive Bearer Securities shall be delivered in exchange for a portion of a temporary global Security only in compliance with the requirements of Section 303.
          Unless otherwise specified in such temporary global Bearer Security, the interest of a beneficial owner of Bearer Securities of a series in a temporary global Bearer Security shall be exchanged for definitive Bearer Securities of the same series and of like tenor following the Exchange Date when the account holder instructs Euroclear or Clearstream, as the case may be, to request such exchange on his behalf and delivers to Euroclear or Clearstream, as the case may be, a certificate in the form set forth in Exhibit A-1 to this Indenture (or in such other form as may be established pursuant to Section 301), dated no earlier than 15 days prior to the Exchange Date, copies of which certificate shall be available from the offices of Euroclear and Clearstream, the Trustee, any Authenticating Agent appointed for such series of Bearer Securities and each Paying Agent. Unless otherwise specified in such temporary global Bearer Security, any such exchange shall be made free of charge to the beneficial owners of such temporary global Bearer Security, except that a Person receiving definitive Bearer Securities must bear the cost of insurance, postage, transportation and the like in the event that such Person does not take delivery of such definitive Bearer Securities in person at the offices of Euroclear or Clearstream. Definitive Bearer Securities to be delivered in exchange for any portion of a temporary global Bearer Security shall be delivered only outside the United States.
          Until exchanged in full as hereinabove provided, the temporary Bearer Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Bearer Securities of the same series and of like tenor authenticated and delivered hereunder, except that, unless otherwise specified as contemplated by Section 301, interest payable on a temporary global Bearer Security on an Interest Payment Date for Bearer Securities of such series occurring prior to the applicable Exchange Date shall be payable to Euroclear and Clearstream on such Interest Payment Date upon delivery by Euroclear and Clearstream to the Trustee of a certificate or certificates in the form set forth in Exhibit A-2 to this Indenture (or in such other form as may be established pursuant to Section 301), for credit without further interest thereon on or after such Interest Payment Date to the respective accounts of the Persons who are the beneficial owners of such temporary global Bearer Security on such Interest Payment Date and who have each delivered to Euroclear or Clearstream, as the case may be, a certificate dated no earlier than 15 days prior to the Interest Payment Date occurring prior to such Exchange Date in the form set forth in Exhibit A-1 to this Indenture (or in such other form as may be established pursuant to Section 301). Notwithstanding anything to the contrary herein contained, the certificates delivered pursuant to this paragraph shall satisfy the certification requirements of the preceding two paragraphs of this Section and of the third paragraph of Section 303 of this Indenture and the interests of the Persons who are the beneficial owners of the temporary global Bearer Security with respect to which such certification was made will be exchanged for definitive Bearer Securities of the same series and of like tenor on the Exchange Date or the date of certification if such date occurs after the Exchange Date, without further act or deed by such

 

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beneficial owners. Except as otherwise provided in this paragraph, no payments of principal (or premium, if any) or interest, if any, owing with respect to a beneficial interest in a temporary global Bearer Security will be made unless and until such interest in such temporary global Bearer Security shall have been exchanged for an interest in a definitive Bearer Security. Any interest so received by Euroclear and Clearstream and not paid as herein provided shall be returned to the Trustee immediately prior to the expiration of two years after such Interest Payment Date in order to be repaid to the Company in accordance with Section 1003.
          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 for each series of Securities (the registers maintained in the Corporate Trust Office of the Trustee 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 or the Guarantor shall provide for the registration of Registered Securities and of transfers of Registered Securities. The Security Register shall be in written form or any other form capable of being converted into written form within a reasonable time. At all reasonable times, the Security Register shall be open to inspection by the Trustee. The Trustee is hereby initially appointed as security registrar (the “Security Registrar”) for the purpose of registering Registered Securities and transfers of Registered Securities as herein provided.
          Upon surrender for registration of transfer of any Registered Security of any series at the office or agency in a Place of Payment for that series, the Company shall execute, and the Guarantor shall execute the Guarantee noted or endorsed on, and the Trustee shall authenticate and deliver, in the name of the designated transferee, one or more new Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor.
          At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series, of any authorized denomination and of a like aggregate principal amount, upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Registered Securities are so surrendered for exchange, the Company shall execute, and the Guarantor shall execute the Guarantee on, and the Trustee shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive. Unless otherwise specified with respect to any series of Securities as contemplated by Section 301, Bearer Securities may not be issued in exchange for Registered Securities.
          If (but only if) expressly permitted in or pursuant to the applicable Board Resolution and (subject to Section 303) set forth in the applicable Officers’ Certificate, or in any indenture supplemental hereto, delivered as contemplated by Section 301, at the option of the Holder, Bearer Securities of any series may be exchanged for Registered Securities of the same series of any authorized denomination and of a like aggregate principal amount and tenor, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons and all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon

 

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or coupons or matured coupon or coupons in default, any such permitted exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Company or the Guarantor, as the case may be, in an amount equal to the face amount of such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company or the Guarantor, as the case may be, and the Trustee if there is furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 1002, interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in a permitted exchange for a Registered Security of the same series and like tenor after the close of business at such office or agency on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date for payment, as the case may be, and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture.
          Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Guarantor shall execute the Guarantee noted or endorsed on, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
          Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 301, any permanent global Security shall be exchangeable only as provided in this paragraph. If any beneficial owner of an interest in a permanent global Security is entitled to exchange such interest for Securities of such series and of like tenor and principal amount of another authorized form and denomination, as specified as contemplated by Section 301 and provided that any applicable notice provided in the permanent global Security shall have been given, then without unnecessary delay but in any event not later than the earliest date on which such interest may be so exchanged, the Company shall deliver to the Trustee definitive Securities in aggregate principal amount equal to the principal amount of such beneficial owner’s interest in such permanent global Security, executed by the Company and the Guarantor. On or after the earliest date on which such interests may be so exchanged, such permanent global Security shall be surrendered by the Common Depositary or such other depositary as shall be specified in the Company Order with respect thereto to the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge, and the Trustee shall authenticate and deliver, in exchange for each portion of such permanent global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such permanent global Security to be exchanged which, unless the Securities of the series are not issuable both as Bearer Securities and as Registered Securities, as specified as contemplated by Section 301, shall be in the form of

 

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Bearer Securities or Registered Securities, or any combination thereof, as shall be specified by the beneficial owner thereof; provided, however, that no such exchanges may occur during a period beginning at the opening of business 15 days before any selection of Securities to be redeemed and ending on the relevant Redemption Date if the Security for which exchange is requested may be among those selected for redemption; and provided, further, that no Bearer Security delivered in exchange for a portion of a permanent global Security shall be mailed or otherwise delivered to any location in the United States. If a Registered Security is issued in exchange for any portion of a permanent global Security after the close of business at the office or agency where such exchange occurs on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person to whom interest in respect of such portion of such permanent global Security is payable in accordance with the provisions of this Indenture.
          The provisions of clauses (1), (2), (3) and (4) below shall apply only to global Registered Securities:
     (1) Each global Registered Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such global Registered Security or a nominee thereof and delivered to such depositary or a nominee thereof or custodian therefor, and each such global Registered Security shall constitute a single Security for all purposes of this Indenture.
     (2) Notwithstanding any other provision in this Indenture, no global Registered Security may be exchanged for Securities registered, and no transfer of a global Registered Security in whole or in part may be registered, in the name of any Person other than the depositary for such global Registered 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 Registered Security or (ii) has ceased to be a clearing agency registered under the Exchange Act and the Company does not appoint another institution to act as depositary within 120 days after the date of the notice described in clause (i) or the cessation described in clause (ii), as the case may be, (B) the Company notifies the Trustee that the Company desires to terminate such global Registered Security, (C) there shall have occurred and be continuing an Event of Default with respect to such global Registered Security or (D) there shall exist such other circumstances, if any, as have been specified for this purpose as contemplated by Section 301.
     (3) Subject to clause (2) above, any exchange of a global Registered Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a global Registered Security or any portion thereof shall be registered in such names as the depositary for such global Registered Security shall direct.

 

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     (4) Every Security authenticated and delivered upon registration or transfer of, or in exchange for or in lieu of, a global Registered 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 Registered Security, unless such Security is registered in the name of a Person other than the depositary for such global Registered Security or a nominee thereof.
          All Securities issued upon any registration of transfer or exchange of Securities, and the Guarantees, shall be the valid obligations of the Company and the Guarantor, respectively, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities, and the Guarantees thereof, surrendered upon such registration of transfer or exchange.
          Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Security Registrar) 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 or the Guarantor, as the case may be, 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, 1107 or 1305 not involving any transfer.
          The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the selection for redemption of Securities of that series under Section 1103 or 1203 and ending at the close of business on (A) if Securities of the series are issuable only as Registered Securities, the day of the mailing of the relevant notice of redemption and (B) if Securities of the series are issuable as Bearer Securities, the day of the first publication of the relevant notice of redemption or, if Securities of the series are also issuable as Registered Securities and there is no publication, the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Registered Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part, or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of that series and like tenor; provided that such Registered Security shall be simultaneously surrendered for redemption, or (iv) to issue, register the transfer of or exchange any Security which has been surrendered for repayment at the option of the Holder, except the portion, if any, of such Security not to be so repaid.
          Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not taken by Euroclear, Clearstream or the Depositary.

 

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          SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
          If any mutilated Security or a Security with a mutilated coupon appertaining to it is surrendered to the Trustee, together with, in proper cases, such security or indemnity as may be required by the Company, the Guarantor or the Trustee to save each of them or any agent of each of them harmless, the Company shall execute, the Guarantor shall execute the Guarantee noted or endorsed thereon, 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, with coupons corresponding to the coupons, if any, appertaining to the surrendered Security.
          If there shall be delivered to the Company, the Guarantor and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security or coupon and (ii) such security or indemnity as may be required by them to save each of them and any agent of each of them harmless, then, in the absence of notice to the Company, the Guarantor or the Trustee that such Security or coupon has been acquired by a bona fide purchaser, the Company shall execute, the Guarantor shall execute the Guarantee noted or endorsed thereon, and upon Company Order or a Guarantor Order the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security or in exchange for the Security to which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or stolen), a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon appertains.
          Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, with coupons corresponding to the coupons, if any, appertaining to such mutilated, destroyed, lost or stolen Security or to the Security to which such mutilated, destroyed, lost or stolen coupon appertains, pay such Security or coupon; provided, however, that payment of principal of (and premium, if any) and interest, if any, on Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an office or agency located outside the United States and, unless otherwise specified as contemplated by Section 301, any interest on Bearer Securities shall be payable only upon presentation and surrender of the coupons appertaining thereto.
          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 with its coupons, if any, issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Security or in exchange for a Security to which a mutilated, destroyed, lost or stolen coupon appertains, and the Guarantee thereon, shall constitute an original additional contractual obligation of the Company and the Guarantor, whether or not the mutilated, destroyed, lost or stolen Security and its coupons, if any, or the mutilated, destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and shall

 

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be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series and their coupons, if any, and the Guarantees 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 or coupons.
          SECTION 307. Payment of Interest; Interest Rights Preserved; Optional Interest Reset.
          (a) Unless otherwise provided as contemplated by Section 301 with respect to any series of Securities, interest, if any, on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid (i) on any Securities (or one or more Predecessor Securities) in certificated form by check mailed to the address of the Holder entitled thereto as it appears in the Security Register (or upon appropriate written application by such Holder to the Trustee or other Paying Agent not later than 15 Business Days prior to the Interest Payment Date, by wire transfer in immediately available funds to such Holder’s account in New York, if such Holder is entitled to interest on an aggregate principal in excess of US$10,000,000) or (ii) on any global Security by wire transfer of immediately available funds to the account of the Depositary.
          If any Interest Payment Date falls on a day that is not a Business Day, payment of any amount otherwise payable on that date will be made on the first following day that is a Business Day with the same force and effect as if made on the date it would otherwise have been payable. No additional interest will accrue as a result of such delayed payment.
          Unless otherwise provided as contemplated by Section 301 with respect to the Securities of any series, in the case of a Bearer Security, payment of interest, if any, may be made, upon presentation and surrender of the coupon appertaining thereto in respect of such payment. Such payment may be made by transfer to an account located outside the United States maintained by the Person entitled thereto pursuant to Section 309.
          Unless otherwise provided as contemplated by Section 301, every permanent Security of any series that is issued in global form will provide that interest, if any, payable on any Interest Payment Date will be paid upon receipt of funds by the Trustee to each of (i) the Depositary and/or (ii) Euroclear and/or Clearstream with respect to that portion of such permanent Security of any series that is issued in global form held for its account by the Common Depositary, as the case may be, for the purpose of permitting each of the Depositary and/or Euroclear and Clearstream, as the case may be, to credit the interest, if any, received by it in respect of such permanent Security of any series issued in global form, to the accounts of the beneficial owners thereof.
          Any interest on any Registered Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date 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 and, if applicable, interest on such defaulted interest (to the extent lawful) at the rate specified in the Securities of such series (such defaulted interest and, if

 

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applicable, interest thereon herein collectively called “Defaulted Interest”) may be paid by the Company or the Guarantor, at its election in each case, as provided in clause (1) or (2) below:
     (1) The Company or the Guarantor may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered 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 or the Guarantor shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of such series and the date of the proposed payment, and at the same time the Company or the Guarantor, as the case may be, shall deposit with the Trustee an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) 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 on or 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 and the Guarantor, as the case may be, of such Special Record Date and, in the name and at the expense of the Company or the Guarantor, as the case may be, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given in the manner provided 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 given, such Defaulted Interest shall be paid to the Persons in whose name the Registered 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 or the Guarantor may make payment of any Defaulted Interest on the Registered 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 or the Guarantor, as the case may be, to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
          (b) The provisions of this Section 307(b) may be made applicable to any series of Securities pursuant to Section 301 (with such modifications, additions or substitutions as may be specified pursuant to such Section 301). The interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) on any Security of such series may be reset by the Company or the Guarantor, as the case may be, on the date or dates specified on the face of such Security (each an “Optional Reset Date”). The Company or the Guarantor, as the case may be, may exercise such option with respect to such Security by notifying the Trustee of such exercise

 

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at least 50 but not more than 60 days prior to an Optional Reset Date for such Note. Not later than 40 days prior to each Optional Reset Date, the Trustee shall transmit, in the manner provided for in Section 106, to the Holder of any such Security a notice (the “Reset Notice”) indicating whether the Company or the Guarantor, as the case may be, has elected to reset the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable), and if so (i) such new interest rate (or such new spread or spread multiplier, if applicable) and (ii) the provisions, if any, for redemption during the period from such Optional Reset Date to the next Optional Reset Date or if there is no such next Optional Reset Date, to the Stated Maturity Date of such Security (each such period a “Subsequent Interest Period”), including the date or dates on which or the period or periods during which and the price or prices at which such redemption may occur during the Subsequent Interest Period.
          Notwithstanding the foregoing, not later than 20 days prior to the Optional Reset Date, the Company or the Guarantor, as the case may be, may, at its option, revoke the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) provided for in the Reset Notice and establish an interest rate (or a spread or spread multiplier used to calculate such interest rate, if applicable) that is higher than the interest rate (or the spread or spread multiplier, if applicable) provided for in the Reset Notice, for the Subsequent Interest Period by causing the Trustee to transmit, in the manner provided for in Section 106, notice of such higher interest rate (or such higher spread or spread multiplier, if applicable) to the Holder of such Security. Such notice shall be irrevocable. All Securities with respect to which the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) is reset on an Optional Reset Date, and with respect to which the Holders of such Securities have not tendered such Securities for repayment (or have validly revoked any such tender) pursuant to the next succeeding paragraph, will bear such higher interest rate (or such higher spread or spread multiplier, if applicable).
          The Holder of any such Security will have the option to elect repayment by the Company of the principal of such Security on each Optional Reset Date at a price equal to the principal amount thereof plus interest accrued to such Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the Holder must follow the procedures set forth in Article Thirteen for repayment at the option of Holders except that the period for delivery or notification to the Trustee shall be at least 25 but not more than 35 days prior to such Optional Reset Date and except that, if the Holder has tendered any Security for repayment pursuant to the Reset Notice, the Holder may, by written notice to the Trustee, revoke such tender or repayment until the close of business on the tenth day before such Optional Reset Date.
          Subject to the foregoing provisions of this Section and Section 305, 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. Optional Extension of Stated Maturity.
          The provisions of this Section 308 may be made applicable to any series of Securities pursuant to Section 301 (with such modifications, additions or substitutions as may be specified pursuant to such Section 301). The Stated Maturity of any Security of such series may

 

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be extended at the option of the Company or the Guarantor for the period or periods specified on the face of such Security (each an “Extension Period”) up to but not beyond the date (the “Final Maturity”) set forth on the face of such Security. The Company or the Guarantor may exercise such option with respect to any Security by notifying the Trustee of such exercise at least 50 but not more than 60 days prior to the Stated Maturity of such Security in effect prior to the exercise of such option (the “Original Stated Maturity”). If the Company or the Guarantor exercises such option, the Trustee shall transmit, in the manner provided for in Section 106, to the Holder of such Security not later than 40 days prior to the Original Stated Maturity a notice to be prepared by the Company (the “Extension Notice”) indicating (i) the election of the Company or the Guarantor to extend the Stated Maturity, (ii) the new Stated Maturity, (iii) the interest rate, if any, applicable to the Extension Period and (iv) the provisions, if any, for redemption during such Extension Period. Upon the Trustee’s transmittal of the Extension Notice, the Stated Maturity of such Security shall be extended automatically and, except as modified by the Extension Notice and as described in the next paragraph, such Security will have the same terms as prior to the transmittal of such Extension Notice.
          Notwithstanding the foregoing, not later than 20 days before the Original Stated Maturity of such Security, the Company or the Guarantor may, at its option, revoke the interest rate provided for in the Extension Notice and establish a higher interest rate for the Extension Period by causing the Trustee to transmit, not later than 15 days before the Original Stated Maturity of such Security in the manner provided for in Section 106, notice of such higher interest rate to the Holder of such Security. Such notice shall be irrevocable. All Securities with respect to which the Stated Maturity is extended will bear such higher interest rate.
          If the Company or the Guarantor extends the Maturity of any Security, the Holder will have the option to elect repayment of such Security by the Company on the Original Stated Maturity at a price equal to the principal amount thereof, plus interest accrued to such date. In order to obtain repayment on the Original Stated Maturity once the Company or the Guarantor has extended the Maturity thereof, the Holder must follow the procedures set forth in Article Thirteen for repayment at the option of Holders, except that the period for delivery or notification to the Trustee shall be at least 25 but not more than 35 days prior to the Original Stated Maturity and except that, if the Holder has tendered any Security for repayment pursuant to an Extension Notice, the Holder may by written notice to the Trustee revoke such tender for repayment until the close of business on the tenth day before the Original Stated Maturity.
          SECTION 309. Persons Deemed Owners.
          Prior to due presentment of a Registered Security for registration of transfer, the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee may treat the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Sections 305 and 307) interest, if any, on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and none of the Company, the Guarantor, the Trustee or any agent of the Company, the Guarantor or the Trustee shall be affected by notice to the contrary.

 

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          Title to any Bearer Security and any coupons appertaining thereto shall pass by delivery. The Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner of such Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Security or coupons be overdue, and none of the Company, the Guarantor, the Trustee or any agent of the Company, the Guarantor or the Trustee shall be affected by notice to the contrary.
          None of the Company, the Guarantor, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Security in global form or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
          Notwithstanding the foregoing, with respect to any global Security, nothing herein shall prevent the Company, the Guarantor, the Trustee or any agent of the Company, the Guarantor or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by any depositary, as a Holder, with respect to such global Security or impair, as between such depositary and owners of beneficial interests in such global Security, the operation of customary practices governing the exercise of the rights of such depositary (or its nominee) as Holder of such global Security.
          SECTION 310. Cancellation.
          All Securities and coupons surrendered for payment, redemption, repayment at the option of the Holder, registration of transfer or exchange or for credit against any current or future sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Securities and coupons so delivered to the Trustee shall be promptly cancelled by it. The Company or the Guarantor may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company or the Guarantor 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 or the Guarantor has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. If the Company or the Guarantor shall so acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered to the Trustee for cancellation. 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 by the Trustee in accordance with its customary procedures and, upon written request, certification of their disposal delivered to the Company, unless by a Company Order or Guarantor Order the Company or the Guarantor shall direct that cancelled Securities be returned to it.

 

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          SECTION 311. Computation of Interest.
          Except as otherwise specified as contemplated by Section 301 with respect to any Securities, interest, if any, on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
          SECTION 312. Currency and Manner of Payments in Respect of Securities.
          (a) Unless otherwise specified with respect to any Securities pursuant to Section 301, with respect to Registered Securities of any series not permitting the election provided for in paragraph (b) below or the Holders of which have not made the election provided for in paragraph (b) below, and with respect to Bearer Securities of any series, except as provided in paragraph (d) below, payment of the principal of (and premium, if any) and interest, if any, on any Registered or Bearer Security of such series will be made in the Currency in which such Registered Security or Bearer Security, as the case may be, is payable. The provisions of this Section 312 may be modified or superseded with respect to any Securities pursuant to Section 301.
          (b) It may be provided pursuant to Section 301 with respect to Registered Securities of any series that Holders shall have the option, subject to paragraphs (d) and (e) below, to receive payments of principal of (or premium, if any) or interest, if any, on such Registered Securities in any of the Currencies which may be designated for such election by delivering to the Trustee a written election with signature guarantees and in the applicable form established pursuant to Section 301, not later than the close of business on the Election Date immediately preceding the applicable payment date. Any Holder of any such Registered Security who shall not have delivered any such election to the Trustee not later than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date in the relevant Currency as provided in Section 312(a). The Trustee shall notify the Exchange Rate Agent as soon as practicable after the Election Date of the aggregate principal amount of Registered Securities for which Holders have made such written election.
          (c) Unless otherwise specified pursuant to Section 301, if the election referred to in paragraph (b) above has been provided for pursuant to Section 301, then, unless otherwise specified pursuant to Section 301, not later than the fourth Business Day after the Election Date for each payment date for Registered Securities of any series, the Exchange Rate Agent will deliver to the Company and the Guarantor a written notice specifying, in the Currency in which Registered Securities of such series are payable, the respective aggregate amounts of principal of (and premium, if any) and interest, if any, on the Registered Securities to be paid on such payment date, specifying the amounts in such Currency so payable in respect of the Registered Securities as to which the Holders of Registered Securities of such series shall have elected to be paid in another Currency as provided in paragraph (b) above. If the election referred to in paragraph (b) above has been provided for pursuant to Section 301 and if at least one Holder has made such election, then, unless otherwise specified pursuant to Section 301, on the second Business Day preceding such payment date the Company and the Guarantor will deliver to the Trustee for such series of Registered Securities an Exchange Rate Officers’ Certificate in respect of the Dollar or Foreign Currency payments to be made on such payment date. Unless otherwise specified pursuant to Section 301, the Dollar or Foreign Currency amount receivable by Holders

 

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of Registered Securities who have elected payment in a Currency as provided in paragraph (b) above shall be determined by the Company or the Guarantor on the basis of the applicable Market Exchange Rate in effect on the third Business Day (the “Valuation Date”) immediately preceding each payment date, and such determination shall be conclusive and binding for all purposes, absent manifest error.
          (d) If a Conversion Event occurs with respect to a Foreign Currency in which any of the Securities are denominated or payable other than pursuant to an election provided for pursuant to paragraph (b) above, then with respect to each date for the payment of principal of (and premium, if any) and interest, if any, on the applicable Securities denominated or payable in such Foreign Currency occurring after the last date on which such Foreign Currency was used (the “Conversion Date”), the Dollar shall be the Currency of payment for use on each such payment date. Unless otherwise specified pursuant to Section 301, the Dollar amount to be paid by the Company or the Guarantor to the Trustee and by the Trustee or any Paying Agent to the Holders of such Securities with respect to such payment date shall be, in the case of a Foreign Currency other than a currency unit, the Dollar Equivalent of the Foreign Currency or, in the case of a currency unit, the Dollar Equivalent of the Currency Unit, in each case as determined by the Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
          (e) Unless otherwise specified pursuant to Section 301, if the Holder of a Registered Security denominated in any Currency shall have elected to be paid in another Currency as provided in paragraph (b) above, and a Conversion Event occurs with respect to such elected Currency, such Holder shall receive payment in the Currency in which payment would have been made in the absence of such election; and if a Conversion Event occurs with respect to the Currency in which payment would have been made in the absence of such election, such Holder shall receive payment in Dollars as provided in paragraph (d) above.
          (f) The “Dollar Equivalent of the Foreign Currency” shall be determined by the Exchange Rate Agent and shall be obtained for each subsequent payment date by converting the specified Foreign Currency into Dollars at the Market Exchange Rate on the Conversion Date.
          (g) The “Dollar Equivalent of the Currency Unit” shall be determined by the Exchange Rate Agent and subject to the provisions of paragraph (h) below shall be the sum of each amount obtained by converting the Specified Amount of each Component Currency into Dollars at the Market Exchange Rate for such Component Currency on the Valuation Date with respect to each payment.
          (h) For purposes of this Section 312 the following terms shall have the following meanings:
     A “Component Currency” shall mean any Currency which, on the Conversion Date, was a component currency of the relevant currency unit, including, but not limited to, the euro.
     A “Specified Amount” of a Component Currency shall mean the number of units of such Component Currency or fractions thereof which were represented in the relevant currency unit, including, but not limited to, the euro, on the Conversion Date. If after the

 

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Conversion Date the official unit of any Component Currency is altered by way of combination or subdivision, the Specified Amount of such Component Currency shall be divided or multiplied in the same proportion. If after the Conversion Date two or more Component Currencies are consolidated into a single currency, the respective Specified Amounts of such Component Currencies shall be replaced by an amount in such single Currency equal to the sum of the respective Specified Amounts of such consolidated Component Currencies expressed in such single Currency, and such amount shall thereafter be a Specified Amount and such single Currency shall thereafter be a Component Currency. If after the Conversion Date any Component Currency shall be divided into two or more Currencies, the Specified Amount of such Component Currency shall be replaced by amounts of such two or more Currencies, having an aggregate Dollar Equivalent value at the Market Exchange Rate on the date of such replacement equal to the Dollar Equivalent value of the Specified Amount of such former Component Currency at the Market Exchange Rate immediately before such division and such amounts shall thereafter be Specified Amounts and such currencies shall thereafter be Component Currencies. If, after the Conversion Date of the relevant currency unit, including, but not limited to, the euro, a Conversion Event (other than any event referred to above in this definition of “Specified Amount”) occurs with respect to any Component Currency of such currency unit and is continuing on the applicable Valuation Date, the Specified Amount of such Component Currency shall, for purposes of calculating the Dollar Equivalent of the Currency Unit, be converted into Dollars at the Market Exchange Rate in effect on the Conversion Date of such Component Currency.
     “Election Date” shall mean the date for any series of Registered Securities as specified pursuant to clause (13) of Section 301 by which the written election referred to in paragraph (b) above may be made.
          All decisions and determinations of the Exchange Rate Agent regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as specified above shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Company, the Guarantor, the Trustee and all Holders of such Securities denominated or payable in the relevant Currency. The Exchange Rate Agent shall promptly give written notice to the Company, the Guarantor and the Trustee of any such decision or determination.
          In the event that the Company or the Guarantor determines in good faith that a Conversion Event has occurred with respect to a Foreign Currency, the Company or the Guarantor, as applicable, will immediately give written notice thereof to the Trustee and to the Exchange Rate Agent (and the Trustee will promptly thereafter give notice in the manner provided for in Section 106 to the Holder of any Registered Security that has made the election provided for in Section 312(b)) specifying the Conversion Date. In the event the Company or the Guarantor so determines that a Conversion Event has occurred with respect to the euro or any other currency unit in which Securities are denominated or payable, the Company or the Guarantor, as applicable, will immediately give written notice thereof to the Trustee and to the Exchange Rate Agent (and the Trustee will promptly thereafter give notice in the manner provided for in Section 106 to the affected Holders) specifying the Conversion Date and the

 

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Specified Amount of each Component Currency on the Conversion Date. In the event the Company or the Guarantor determines in good faith that any subsequent change in any Component Currency as set forth in the definition of Specified Amount above has occurred, the Company or the Guarantor, as applicable, will similarly give written notice to the Trustee and the Exchange Rate Agent.
          The Trustee shall be fully justified and protected in relying and acting upon information received by it from the Company, the Guarantor and the Exchange Rate Agent and shall not otherwise have any duty or obligation to determine the accuracy or validity of such information independent of the Company, the Guarantor or the Exchange Rate Agent.
          SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent.
          (a) Unless otherwise specified pursuant to Section 301, if and so long as the Securities of any series (i) are denominated in a Currency other than Dollars or (ii) may be payable in a Currency other than Dollars, or so long as it is required under any other provision of this Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, at least one Exchange Rate Agent. The Company will cause the Exchange Rate Agent to make the necessary foreign exchange determinations at the time and in the manner specified pursuant to Section 301 for the purpose of determining the applicable rate of exchange and, if applicable, for the purpose of converting the issued Currency into the applicable payment Currency for the payment of principal (and premium, if any) and interest, if any, pursuant to Section 312.
          (b) No resignation of the Exchange Rate Agent and no appointment of a successor Exchange Rate Agent pursuant to this Section shall become effective until the acceptance of appointment by the successor Exchange Rate Agent as evidenced by a written instrument delivered to the Company, the Guarantor and the Trustee.
          (c) If the Exchange Rate Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent for any cause with respect to the Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to the Securities of that or those series (it being understood that any such successor Exchange Rate Agent may be appointed with respect to the Securities of one or more or all of such series and that, unless otherwise specified pursuant to Section 301, at any time there shall only be one Exchange Rate Agent with respect to the Securities of any particular series that are originally issued by the Company on the same date and that are initially denominated and/or payable in the same Currency).
          SECTION 314. CUSIP Numbers.
          The Company in issuing the Securities may use “CUSIP” or “ISIN” numbers (if then generally in use), and, if so, the Trustee shall indicate the “CUSIP” or “ISIN” numbers of the Securities in notices of redemption as a convenience to Holders; PROVIDED that any such notice may state that no representation is made as to the correctness of such numbers either as

 

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printed on the Securities or as contained in any notice of redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
          SECTION 401. Satisfaction and Discharge of Indenture.
          This Indenture shall upon Company Request or Guarantor Request cease to be of further effect with respect to any series of Securities specified in such Company Request or Guarantor Request (except as to any surviving rights of registration of transfer or exchange of Securities of such series expressly provided for herein or pursuant hereto and any right to receive Additional Amounts as contemplated by Section 1005) and the Trustee, upon receipt of a Company Order or Guarantor Order, and at the expense of the Company and the Guarantor, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when
          (1) either
     (A) all Securities of such series theretofore authenticated and delivered and all coupons, if any, appertaining thereto (other than (i) coupons appertaining to Bearer Securities surrendered for exchange for Registered Securities and maturing after such exchange, whose surrender is not required or has been waived as provided in Section 305, (ii) Securities and coupons of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306, (iii) coupons appertaining to Securities called for redemption and maturing after the relevant Redemption Date, whose surrender has been waived as provided in Section 1106, and (iv) Securities and coupons of such series for whose payment money has theretofore been deposited in trust with the Trustee or any Paying Agent or segregated and held in trust by the Company or the Guarantor and thereafter repaid to the Company or the Guarantor, as the case may be, or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or
     (B) all Securities of such series and, in the case of (i) or (ii) below, any coupons appertaining thereto 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) if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the

 

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Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company and the Guarantor,
and the Company or the Guarantor, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose an amount in the Currency in which the Securities of such series are payable, sufficient to pay and discharge the entire indebtedness on such Securities and such coupons not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest and Additional Amounts, if any, 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 or the Guarantor has paid or caused to be paid all other sums payable hereunder by the Company and the Guarantor; and
     (3) the Company or the Guarantor, as the case may be, 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 as to such series have been complied with.
          Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company and the Guarantor to the Trustee and any predecessor Trustee under Section 606, the obligations of the Company and the Guarantor to any Authenticating Agent under Section 611 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, any rights to Additional Amounts pursuant to Section 1005 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, the coupons and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own, or authorizing the Guarantor to act as, Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest, if any, for whose payment such money has been deposited with or received by the Trustee; but such money need not be segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
          SECTION 501. Events of Default.
          “Event of Default”, wherever used herein with respect to Securities of any particular series, means any one of the following events (whatever the reason for such Event of

 

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Default and whether or not 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 or any Additional Amounts upon on any Security of that series, or of any related coupon appertaining thereto, when such interest, Additional Amount or coupon 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 premium, if any, on) any Security of that series when it becomes due and payable at its Maturity; or
     (3) failure to pay when due, after the expiration of any applicable grace period, any portion of the principal of, or involuntary acceleration of the maturity (which acceleration is not rescinded or annulled within 10 days) of, Debt of the Company or the Guarantor having an aggregate principal amount outstanding in excess of the greater of (i) $100,000,000 and (ii) 5% of Consolidated Net Tangible Assets of the Guarantor; or
     (4) default in the deposit of any sinking fund payment, when and as due by the terms of the Securities of that series and Article Twelve; or
     (5) default in the performance, or breach, of any covenant or agreement of the Company or the Guarantor in this Indenture with respect to any Security of that series or, as the case may require, the Guarantees (other than a covenant or agreement a default in whose performance or whose breach is specifically dealt with elsewhere in this Section) and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company and the Guarantor by the Trustee, or to the Company, the Guarantor 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
     (6) the Company or the Guarantor pursuant to or within the meaning of any Bankruptcy Law:
          (a) commences a voluntary case,
          (b) consents to the entry of an order for relief against it in an involuntary case,
          (c) consents to the appointment of a Custodian of it or for all or substantially all of its property, or
          (d) makes a general assignment for the benefit of its creditors; or
     (7) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
          (a) is for relief against the Company or the Guarantor in an involuntary case,

 

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          (b) appoints a Custodian of the Company or the Guarantor or for all or substantially all of either of their respective properties, or
          (c) orders the liquidation of the Company or the Guarantor,
          and, in the case of (a), (b) or (c), the order or decree or other measures remain unstayed and in effect for 90 days; or
          (8) any other Event of Default provided with respect to Securities of that series.
The term “Bankruptcy Law” means title 11, U.S. Code, any similar Federal or State law for the relief of debtors, and any similar Isle of Man or South Africa law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator or other similar official under any Bankruptcy Law.
          SECTION 502. Acceleration of Maturity; Rescission and Annulment.
          If an Event of Default described in Section 501 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 (or, if the Securities of that series are Original Issue Discount Securities or Indexed Securities, such portion of the principal as may be specified in the terms of that series) of all of the Securities of that series to be due and payable immediately, by a notice in writing to the Company and the Guarantor (and to the Trustee if given by Holders), and upon any such declaration such principal (or specified portion thereof) shall 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 provided in this Article, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company, the Guarantor and the Trustee, may rescind and annul such declaration and its consequences if:
     (1) the Company or the Guarantor has paid or deposited with the Trustee a sum sufficient to pay in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)):
     (A) all overdue interest and Additional Amounts, if any, on all Outstanding Securities of that series (or of all series, as the case may be) and any related coupons,
     (B) the principal of (and premium, if any, on) Outstanding Securities of that series which have become due otherwise than by such declaration of acceleration, and interest thereon at the rate or rates prescribed therefor in such Securities,

 

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     (C) to the extent that payment of such interest is lawful, interest on overdue interest at the rate or rates prescribed therefor in such Securities, and
     (D) 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 (or premium, if any) or interest on 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 and the Guarantor covenant that if
     (1) default is made in the payment of any installment of interest and Additional Amounts on any Security of any series and any related coupon 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 of any series at its Maturity,
then the Company or the Guarantor will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of Securities of such series and coupons, the whole amount then due and payable on such Securities and coupons for principal (and premium, if any) and interest, if any, with interest on any overdue principal (and premium, if any) and, to the extent that payment of such interest shall be legally enforceable, 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 the Company or the Guarantor fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company, the Guarantor or any other obligor upon Securities of such series and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company, the Guarantor or any other obligor upon Securities of such series, wherever situated.
          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 and related coupons 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 the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company, the Guarantor or any other obligor upon the Securities or the property of the Company, the Guarantor or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities of any series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company or the Guarantor for the payment of overdue principal, premium, if any, or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise:
     (i) to file and prove a claim for the whole amount of principal (or in the case of Original Issue Discount Securities or Indexed Securities, such portion of the principal as may be specified in the terms thereof) (and premium, if any) and interest, if any, owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
     (ii) 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 of Securities of such series and coupons to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee and any predecessor Trustee, their agents and counsel, and any other amounts due to the Trustee or any predecessor Trustee under Section 606.
          Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security or coupon any plan of reorganization, arrangement, adjustment or composition affecting the Securities or coupons or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of a security or coupon in any such proceeding.
          SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
          All rights of action and claims under this Indenture or the Securities or coupons or the Guarantees may be prosecuted and enforced by the Trustee without the possession of any of the Securities or coupons 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 and coupons in respect of which such judgment has been recovered.

 

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          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 premium, if any) or interest, if any, upon presentation of the Securities or coupons, or both, as the case may be, 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 to the Trustee and any predecessor Trustee under Section 606;
     Second: To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest, if any, on the Securities and coupons in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the aggregate amounts due and payable on such Securities and coupons for principal (and premium, if any) and interest, if any, respectively; and
     Third: To the payment of the remainder, if any, to the Company or any other Persons entitled thereto.
          SECTION 507. Limitation on Suits.
          No Holder of any Security of any series or any related coupon 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 reasonably 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 such Holders, or to obtain or to seek to obtain priority or

 

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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 such Holders.
          SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.
          Notwithstanding any other provision in this Indenture, the Holder of any Security or coupon shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any) and (subject to Section 307) interest, if any, on such Security or payment of such coupon, as the case may be, on the respective due dates expressed in such Security or coupon (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 any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, the Company, the Guarantor, the Trustee and the Holders of Securities and coupons shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
          SECTION 510. Rights and Remedies Cumulative.
          Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities or coupons 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 Security or coupon 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.
          With respect to the Securities of any series, the Holders of not less than a majority in principal amount of the Outstanding Securities of such series shall have the right to direct the

 

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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,
     (2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
     (3) the Trustee need not take any action which might involve it in personal liability or be unjustly prejudicial to the Holders of Securities of such series not consenting.
          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 and any related coupons waive any past default hereunder with respect to such series and its consequences, except a default
     (1) in respect of the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series or any related coupons, or
     (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 Event of Default or impair any right consequent thereon.
          SECTION 514. Waiver of Stay or Extension Laws.
          Each of the Company and the Guarantor covenants (to the extent that each may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and each of the Company and the Guarantor (to the extent that each 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.
          SECTION 515. Undertaking for Costs.
          In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its

 

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discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorney’s fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 515 does not apply to a suit by the Trustee, or a suit by Holders of more than 10% in principal amount of the then Outstanding Securities.
          SECTION 516. Statement by Officers as to Default.
          The Company shall deliver to the Trustee, as soon as possible after the Company becomes aware of the occurrence of any Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, an Officers’ Certificate setting forth the details of such Event of Default or default and the action which the Company proposes to take with respect thereto.
ARTICLE SIX
THE TRUSTEE
          SECTION 601. Notice of Defaults.
          Within 90 days after the occurrence of any Default hereunder with respect to the Securities of any series, the Trustee shall transmit in the manner and to the extent provided in TIA Section 313(c), notice of such Default hereunder known to the Trustee, unless such Default shall have been cured or waived; provided, however, that, except in the case of a Default in the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series or, in the payment of any sinking or purchase fund installment with respect to Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders of Securities and coupons of such series; and provided further that in the case of any Default of the character specified in Section 501(5) with respect to Securities and coupons of such series, no such notice to Holders shall be given until at least 60 days after the occurrence thereof.
          SECTION 602. Certain Rights of Trustee.
     (A) Subject to the provisions of TIA Sections 315(a) through 315(d):
     (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, coupon 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 or of the Guarantor mentioned herein shall be sufficiently evidenced by a Guarantor Request or Guarantor

 

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Order (in each case, other than delivery of any Security, together with any coupons appertaining thereto, to the Trustee for authentication and delivery pursuant to Section 303 which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors may 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, conclusively rely upon a Board Resolution, an Opinion of Counsel or an Officers’ Certificate;
     (4) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
     (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 of Securities of any series or any related coupons 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, coupon 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 and the Guarantor, personally or by agent or attorney and shall incur no liability or additional liability of any kind of 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 and shall have no obligation to monitor or supervise agents;
     (8) the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
     (9) 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

 

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Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;
     (10) 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
     (11) the Trustee may request that the Company deliver an Officers’ Certificate setting forth the names of individuals and/or titles of directors or officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded;
     (12) 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.
     (B) (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 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 (1) of this Section;

 

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               (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, 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
     (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.
          The Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
          SECTION 603. Trustee Not Responsible for Recitals or Issuance of Securities.
          The recitals contained herein and in the Securities, except for the Trustee’s certificates of authentication, and in any coupons shall be taken as the statements of the Company or the Guarantor, as the case may be, 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 or coupons or the Guarantees, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Company are true and accurate, subject to the qualifications set forth therein. 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 604. May Hold Securities.
          The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, the Guarantor or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and coupons and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Company or the Guarantor with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
          SECTION 605. 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 interest on

 

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any money received by it hereunder except as otherwise agreed with the Company or the Guarantor, as the case may be.
          SECTION 606. Compensation and Reimbursement.
          The Company agrees:
     (1) to pay to the Trustee from time to time such compensation for all services rendered by it hereunder as has been agreed in writing (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 own negligence or willful misconduct; and
     (3) to indemnify the Trustee for, and to hold it harmless against, any loss, damage, claim, liability or expense incurred without negligence or willful misconduct on its own part, 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 or liability in connection with the exercise or performance of any of its powers or duties hereunder.
          In the event the Company fails to make any such payments or indemnify the Trustee the Guarantor hereby agrees to make such payments and/or indemnify the Trustee on its behalf. As security for the performance of the obligations of the Company and the Guarantor under this Section, the Trustee shall have a claim prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities or any coupons.
          When the Trustee incurs expenses or renders services after the occurrence of an Event of Default relating to insolvency or bankruptcy, the expenses (including the reasonable charges and expenses of its counsel) and the compensation for such 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 606 shall survive the satisfaction, discharge and termination of this Indenture or the earlier resignation or removal of the Trustee.
          SECTION 607. Corporate Trustee Required; Eligibility.
          (a) There shall be at all times a Trustee hereunder which shall be eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined capital and surplus of at least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of U.S. Federal, State, territorial or District of Columbia supervising or

 

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examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation 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 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 608. Resignation and Removal; Appointment of Successor.
          (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 609.
          (b) 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 and the Guarantor.
          (c) 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 and the Guarantor.
          (d) If at any time:
     (1) the Trustee shall fail to comply with the provisions of TIA Section 310(b) after written request therefor by the Company, the Guarantor 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 607(a) and shall fail to resign after written request therefor by the Company, the Guarantor or by any Holder who has been a bona fide Holder of a Security for at least six months, or
     (3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company or the Guarantor, by or pursuant to a Board Resolution, may remove the Trustee and appoint a successor Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e), 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.
          (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause with respect to the Securities of one or more series, the Company and the Guarantor, by or pursuant to 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). If, within one year after such resignation,

 

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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, the Guarantor and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company and the Guarantor. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company and the Guarantor or the Holders and accepted appointment in the manner hereinafter provided, 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.
          (f) 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 in the manner provided for notices to the Holders of Securities of such series 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 609. Acceptance of Appointment by Successor.
          (a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee shall execute, acknowledge and deliver to the Company, the Guarantor 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 request of the Company, the Guarantor or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
          (b) 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 Guarantor, 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

 

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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, the Guarantor 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. Whenever there is a successor Trustee with respect to one or more (but less than all) series of securities issued pursuant to this Indenture, the terms “Indenture” and “Securities” shall have the meanings specified in the provisos to the respective definitions of those terms in Section 101 which contemplate such situation.
          (c) Upon request of any such successor Trustee, the Company and the Guarantor shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
          (d) 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 610. 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 part of any of the parties hereto. In case any Securities or coupons 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 or coupons so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities or coupons. In case any of the Securities or coupons shall not have been authenticated by such predecessor Trustee, any successor Trustee may authenticate and deliver such Securities or coupons either in the name of any predecessor hereunder or in the name of the successor Trustee. In all such cases such certificates shall have the full force and effect which this Indenture provides for the certificate of authentication of the Trustee; provided, however, that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.

 

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          SECTION 611. Appointment of Authenticating Agent.
          At any time when any of the Securities remain Outstanding, 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 exchange, registration of transfer or partial redemption thereof, 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. Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee, and a copy of such instrument shall be promptly furnished to the Company and the Guarantor. 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 the Guarantor and, except as may otherwise be provided pursuant to Section 301, shall at all times be a bank or trust company or corporation organized and doing business and in good standing 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 corporation 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, it 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 and the Guarantor. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company and the Guarantor. 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 the Guarantor and shall give written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, in the manner provided for in Section 106. 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

 

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originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
          The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.
          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 alternate certificate of authentication in the following form:
          Dated: ____________________
          This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
         
  [NAME OF TRUSTEE],
as Trustee
 		  
  By      
    as Authenticating Agent   
     
  By      
    Authorized Officer   
       
 
ARTICLE SEVEN
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
          SECTION 701. Disclosure of Names and Addresses of Holders.
          Every Holder of Securities or coupons, by receiving and holding the same, agrees with the Company, the Guarantor and the Trustee that none of the Company, the Guarantor or the Trustee or any agent of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with TIA Section 312, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under TIA Section 312(b).
          SECTION 702. Reports by Trustee.
          Within 60 days after May 15 of each year commencing with the first May 15 after the first issuance of Securities pursuant to this Indenture, the Trustee shall transmit to the Holders of Securities, in the manner and to the extent provided in TIA Section 313(c), a brief report dated as of May 15 if required by TIA 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, if any, upon which the Securities are listed, with the Commission and with the Company. The Company will promptly notify the Trustee of the listing or delisting of the Securities on any stock exchange.

 

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          SECTION 703. Reports by the Company and the Guarantor.
          The Company and the Guarantor shall:
     (1) file with the Trustee, within 15 days after the Company or the Guarantor, as the case may be, is required to file the same with the Commission, copies of the annual reports and of the information, documents, and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company or the Guarantor, as the case may be, may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended; or, if the Company or the Guarantor, as the case may be, is not required to file information, documents or reports pursuant to either of such Sections, then it shall file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934, as amended, in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;
     (2) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company and the Guarantor, as the case may be, with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and
     (3) transmit to all Holders, in the manner and to the extent provided in TIA Section 313(c), within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company or the Guarantor pursuant to paragraphs (1) and (2) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.
          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 or the Guarantor’s compliance with any of its covenants hereunder.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
          SECTION 801. Company or Guarantor May Consolidate, etc., Only on Certain Terms.
          Neither the Company nor the Guarantor shall consolidate with or merge into any other corporation or convey or transfer its properties and assets substantially as an entirety to any Person, unless:

 

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     (1) either the Company or the Guarantor shall be the continuing corporation, or the corporation formed by such consolidation or into which the Company or the Guarantor is merged or the Person which acquires by conveyance or transfer the properties and assets of the Company or the Guarantor substantially as an entirety shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee acting reasonably, in the case of the Company, the due and punctual payment of the principal of (and premium, if any) and interest, if any, on all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed, and, in the case of the Guarantor, the due and punctual performance of the Guarantees and the performance or observance of every covenant of this Indenture on the part of the Guarantor to be performed or observed;
     (2) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and
     (3) the Company or such Person shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
          This Section shall only apply to a merger or consolidation in which the Company or the Guarantor, as the case may be, is not the surviving corporation and to conveyances and transfers by the Company or the Guarantor, as the case may be, as transferor.
          SECTION 802. Successor Person Substituted.
          Upon any consolidation or merger, or any conveyance or transfer of the properties and assets of the Company or the Guarantor, as the case may be substantially as an entirety to any Person in accordance with Section 801, the successor Person formed by such consolidation or into which the Company or the Guarantor is merged or to which such conveyance or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company or the Guarantor under this Indenture with the same effect as if such successor Person had been named as the Company or the Guarantor, as the case may be, herein; and in the event of any such merger, consolidation, conveyance or transfer (other than a transfer or conveyance by means of a lease), the Company or the Guarantor, as the case may be, shall be discharged from all obligations and covenants under this Indenture and the Securities and the coupons, or the Guarantees, as the case may be, and may be dissolved and liquidated.
          SECTION 803. Assumption by Guarantor.
          The Guarantor may directly 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, any premium and interest on and any Additional Amounts with respect to all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed. Upon any such

 

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assumption, the Guarantor 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 the Guarantor had been named as the Company herein, and the Company shall be released from all obligations and covenants with respect to the Securities. No such assumption shall be permitted unless the Guarantor has delivered to the Trustee (i) an Officers’ Certificate and an Opinion of Counsel, each stating that such assumption and supplemental indenture comply with this Section 803, and that all conditions precedent herein provided for relating to such transaction have been complied with and (ii) an opinion of independent counsel that the Holders of Securities or related coupons (assuming such Holders are only taxed as residents of the United States) shall have no materially adverse United States federal tax consequences as a result of such assumption, and that, if any Securities are then listed on the New York Stock Exchange, that such Securities shall not be delisted as a result of such assumption.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
          SECTION 901. Supplemental Indentures Without Consent of Holders.
          Without the consent of any Holders, the Company and the Guarantor, when authorized by or pursuant to a Board Resolution of the Company and the Guarantor, as applicable, 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 acting reasonably, for any of the following purposes:
     (1) to evidence the succession of another Person to the Company or the Guarantor and the assumption by any such successor of the covenants of the Company or the Guarantor contained herein and in the Securities; or
     (2) to add to the covenants of the Company or the Guarantor for the benefit of the Holders of all or any series of Securities and any related coupons (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company or the Guarantor; or
     (3) to add any additional Events of Default (and if such Events of Default are to be for the benefit of less than all series of Securities, stating that such Events of Default are being included solely for the benefit of such series); provided, however, that in respect of any such additional Events of Default such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such Default or may limit the remedies available to the Trustee upon such default or may limit the right of the Holders of a majority in aggregate principal amount of that or those series of Securities to which such additional Events of Default apply to waive such default; or

 

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     (4) to add to or change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal of or any premium or interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities of other authorized denominations or to permit or facilitate the issuance of Securities in uncertificated form; provided that any such action shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect; or
     (5) to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or
     (6) to secure the Securities or the Guarantees pursuant to the requirements of Section 1006 or otherwise; or
     (7) to establish the form or terms of Securities of any series and any related coupons or Guarantees 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 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; or
     (9) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture; provided any such action shall not adversely affect the interests of the Holders of Securities of any series and any related coupons in any material respect; or
     (10) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Sections 401, 1402 and 1403; provided that any such action shall not adversely affect the interests of the Holders of Securities of such series and any related coupons or any other series of Securities in any material respect;
     (11) to effect the assumption by the Guarantor or a Subsidiary thereof pursuant to Section 803; or
     (12) to conform the text of this Indenture or the Securities to any provision of sections entitled “Description of Notes,” “Description of Debt Securities” or analogous sections as set forth in the offering document relating to the offering of the Securities.

 

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          SECTION 902. Supplemental Indentures with Consent of Holders.
          With the consent of the Holders of not less than a majority in principal amount of all Outstanding Securities affected by such supplemental indenture, by Act of said Holders delivered to the Company, the Guarantor and the Trustee, the Company and the Guarantor, when authorized by or pursuant to a Board Resolution of the Company and the Guarantor, as the case may be, 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 which affect such series of Securities 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 of such series:
     (1) change the Stated Maturity of the principal of (or premium, if any) (it being understood that any extension of the Stated Maturity of any Security pursuant to Section 308 will not require a supplemental indenture or the consent of the Holder of each Outstanding Security of such series) or any installment of interest on any Security of such series, or reduce the principal amount thereof (or premium, if any) or the rate of interest, if any, thereon, or change any obligation of the Company or the Guarantor to pay Additional Amounts contemplated by Section 1005 (except as contemplated by Section 801(1) and permitted by Section 901(1)), or reduce the amount of the principal of an Original Issue Discount Security of such series that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502 or the amount thereof provable in bankruptcy pursuant to Section 504, or adversely affect any right of repayment at the option of any Holder of any Security of such series, or change any Place of Payment where, or the Currency in which, any Security of such series 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 or repayment at the option of the Holder, on or after the Redemption Date or Repayment Date, as the case may be), or adversely affect any right to convert or exchange any Security as may be provided pursuant to Section 301 herein, or
     (2) reduce the percentage in principal amount of the Outstanding Securities of such series 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 which affect such series or certain defaults applicable to such series hereunder and their consequences provided for in this Indenture, or reduce the requirements of Section 1504 for quorum or voting with respect to Securities of such series, or
     (3) modify any of the provisions of this Section, Section 513, Section 1008 and Sections 1503 to 1506, except to increase any such percentage or to provide that certain other provisions of this Indenture which affect such series cannot be modified or waived without the consent of the Holder of each Outstanding Security of such series.
          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

 

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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 given, and shall (subject to Section 315 of the Trust Indenture Act) be fully protected in relying upon, an Opinion of Counsel and an Officers’ Certificate 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 as then in effect.
          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 and the Guarantor shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee, the Company and the Guarantor, to any such supplemental indenture may be prepared and executed by the Company, the Guarantees noted or endorsed thereon may be prepared and executed by the Guarantor, and such Securities may be authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.

 

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ARTICLE TEN
COVENANTS
          SECTION 1001. Payment of Principal, Premium, if any, and Interest.
          The Company covenants and agrees for the benefit of the Holders of each series of Securities and any related coupons that it will duly and punctually pay the principal of (and premium, if any) and interest, if any, by 2:00 p.m. New York time on the day prior to the date such principal of (and premium, if any) and interest is due on the Securities of that series in accordance with the terms of such series of Securities, any coupons appertaining thereto and this Indenture. Trustee will only be obliged to make onward payments following confirmation of receipt of funds, not simply receipt of funds. Unless otherwise specified with respect to Securities of any series pursuant to Section 301, all payments of principal and premium, if any, shall be paid (i) to the Holder entitled thereto as it appears in the Security Register by check at the office or agency of the Company maintained for such purpose pursuant to Section 1002 (or upon appropriate written application by such Holder to the Trustee or other Paying Agent not later than 15 Business Days prior to the date of maturity, by wire transfer in immediately available funds to such Holder’s account in New York, if such Holder is entitled to principal and premium, if any, on an aggregate principal in excess of US$10,000,000), against surrender of such Security or (ii) on any global Security by wire transfer of immediately available funds to the account of the Depositary. Unless otherwise specified as contemplated by Section 301 with respect to any series of Securities, any interest installments due on Bearer Securities on or before Maturity shall be payable only upon presentation and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature.
          SECTION 1002. Maintenance of Office or Agency.
          If the Securities of a series are issuable only as Registered Securities, 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, where Securities of that series that are exchangeable may be surrendered for exchange, as applicable and where notices and demands to or upon the Company or the Guarantor, as the case may be, in respect of the Securities of that series and this Indenture may be served.
          If Securities of a series are issuable as Bearer Securities, the Company will maintain (A) in The City of New York, an office or agency where any Registered Securities of that series may be presented or surrendered for payment, where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange, where Securities of that series that are exchangeable may be surrendered for exchange, as applicable, where notices and demands to or upon the Company or the Guarantor, as the case may be, in respect of the Securities of that series and this Indenture may be served and where Bearer Securities of that series and related coupons may be presented or surrendered for payment in the circumstances described in the following paragraph (and not otherwise), (B) subject to any laws or regulations applicable thereto, in a Place of Payment for that series which is located outside the United States, an office or agency where Securities of that

 

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series and related coupons may be presented and surrendered for payment; provided, however, that, if the Securities of that series are listed on any stock exchange located outside the United States and such stock exchange shall so require, the Company or the Guarantor, as the case may be, will maintain a Paying Agent for the Securities of that series in any required city located outside the United States so long as the Securities of that series are listed on such exchange, and (C) subject to any laws or regulations applicable thereto, in a Place of Payment for that series located outside the United States, an office or agency where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange, where Securities of that series that are exchangeable may be surrendered for exchange, as applicable, and where notices and demands to or upon the Company or the Guarantor, as the case may be, 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, except that Bearer Securities of any series and the related coupons may be presented and surrendered for payment or exchange at any Paying Agent for such series located outside the United States, and the Company hereby appoints the same as its agents to receive such respective presentations, surrenders, notices and demands.
          If Securities of a series are issuable only as Registered Securities, the Guarantor shall 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 pursuant to any Guarantee and where notices and demands to or upon the Guarantor in respect of any Guarantee and this Indenture may be served. If Securities of a series are issuable as Bearer Securities, the Guarantor will maintain (A) in the Borough of Manhattan, The City of New York, an office or agency where any Registered Securities of that series may be presented or surrendered for payment pursuant to any Guarantee and where notices and demands to or upon the Guarantor in respect of any Guarantee and this Indenture may be served and where Bearer Securities of that series and related coupons may be presented or surrendered for payment pursuant to any Guarantee in the circumstances described in the following paragraph (and not otherwise) and (B) subject to any laws or regulations applicable thereto, in a Place of Payment for that series which is located outside the United States, an office or agency where Securities of that series and related coupons may be presented and surrendered for payment pursuant to any Guarantee; provided, however, that if the Securities of that series are listed on any stock exchange located outside the United States and such stock exchange shall so require, the Guarantor will maintain a Paying Agent for the Securities of that series in any required city located outside the United States, as the case may be, so long as the Securities of that series are listed on such exchange. The Guarantor will give prompt written notice to the Trustee of the location, and any change in the location, of each such office or agency. If at any time the Guarantor 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, except that Bearer Securities of that series and the related coupons may be presented and surrendered for payment or exchange at any Paying Agent for such series located outside the United States, and the Guarantor hereby appoints the same as its agent to receive such respective

 

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presentations, surrenders, notices and demands, and the Guarantor hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
          Unless otherwise specified with respect to any Securities pursuant to Section 301, no payment of principal, premium or interest on Bearer Securities by or on behalf of the Guarantor shall be made at any office or agency of the Company or the Guarantor, as the case may be, in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States; provided, however, that, if the Securities of a series are payable in Dollars, payment of principal of (and premium, if any) and interest, if any, by or on behalf of the Guarantor on any Bearer Security shall be made at the office of the Company’s or the Guarantor’s, as the case may be, Paying Agent in The City of London, if (but only if) payment in Dollars of the full amount of such principal, premium or interest, as the case may be, at all offices or agencies outside the United States maintained for such purpose by the Company or the Guarantor, as the case may be, in accordance with this Indenture, is illegal or effectively precluded by exchange controls or other similar restrictions.
          The Company or the Guarantor 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 any such designation; provided, however, that no such designation or rescission shall in any manner relieve the Company or the Guarantor of its obligation to maintain an office or agency in accordance with the requirements set forth above for Securities of any series for such purposes. The Company or the Guarantor 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. Unless otherwise specified with respect to any Securities as contemplated by Section 301 with respect to a series of Securities, the Company and the Guarantor each hereby designate as a Place of Payment for each series of Securities the office or agency of the Company or the Guarantor, as the case may be, in the Borough of Manhattan, The City of New York, and initially appoint the Trustee at its Corporate Trust Office as Paying Agent in such city and as their agent to receive all such presentations, surrenders, notices and demands.
          Unless otherwise specified with respect to any Securities pursuant to Section 301, if and so long as the Securities of any series (i) are denominated in a Currency other than Dollars or (ii) may be payable in a Currency other than Dollars, or so long as it is required under any other provision of the Indenture, then the Company or the Guarantor, as the case may be, will maintain with respect to each such series of Securities, or as so required, at least one Exchange Rate Agent.
          SECTION 1003. Money for Securities Payments to Be Held in Trust.
          If the Company shall at any time act as its own, or authorize the Guarantor to act as, Paying Agent with respect to any series of Securities and any related coupons, it will, on or before each due date of the principal of (or premium, if any) or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal of (or premium, if

 

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any) or interest, if any, on Securities of such series 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 and any related coupons, it will, prior to or on each due date of the principal of (or premium, if any) or interest, if any, on any Securities of that series, deposit with a Paying Agent a sum (in the Currency described in the preceding paragraph) sufficient to pay the principal (or premium, if any) or interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, 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 or the Guarantor 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 or Guarantor 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 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 sums.
          Except as provided in the Securities of any series, any money deposited with the Trustee or any Paying Agent, or then held by the Company or the Guarantor, in trust for the payment of the principal of (or premium, if any) or interest, if any, on any Security of any series, or any coupon appertaining thereto, 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 (if then held by the Company) or, if deposited by the Guarantor, paid to the Guarantor on Guarantor Request shall be discharged from such trust; and the Holder of such Security or coupon shall thereafter, as an unsecured general creditor, look only to the Company and the Guarantor for payment thereof (without interest thereon), 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 or the Guarantor cause to be published once, in an Authorized Newspaper, 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 or the Guarantor, as the case may be.
          SECTION 1004. Statement as to Compliance.
          The Company and the Guarantor will each deliver to the Trustee, within 120 days after the end of each fiscal year, a brief certificate from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of the Company’s or the Guarantor’s, as the case may be, compliance with all conditions and covenants under this Indenture, including specifying any Default hereunder. For purposes of this Section 1004, such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture.

 

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          SECTION 1005. Additional Amounts.
          All payments of, or in respect of, principal of and any premium and interest on the Securities, and all payments pursuant to any Guarantee, shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of a Taxing Jurisdiction, unless such taxes, duties, assessments or governmental charges are required by such Taxing Jurisdiction to be withheld or deducted. In that event, the Company or the Guarantor, as applicable, will pay such additional amounts of, or in respect of, principal and any premium and interest (“Additional Amounts”) as will result (after deduction of such taxes, duties, assessments or governmental charges and any additional taxes, duties, assessments or governmental charges payable in respect of such) in the payment to each Holder of a Security of the amounts which would have been payable in respect of such Security or the Guarantee thereof, as the case may be, had no such withholding or deduction been required, except that no Additional Amounts shall be so payable for or on account of:
     (1) any tax, duty, assessment or other governmental charge imposed by any jurisdiction other than a Taxing Jurisdiction (including the United States or any political subdivision or taxing authority thereof or therein);
     (2) any tax, duty, assessment or other governmental charge which would not have been imposed but for (A) the existence of any present or former connection between such Holder or a third party on behalf of such Holder by reason of its (or between a fiduciary, settlor, beneficiary member, shareholder or possessor of a power over such Holder, if such Holder is an estate, trust, partnership or corporation) having some present or former connection with a Taxing Jurisdiction (including being or having been a citizen or resident of a Taxing Jurisdiction or being or having been engaged in a trade or business or present therein or having or having had a permanent establishment therein, but not including the mere holding or ownership of a debt security), or (B) the presentation of such Security or the Guarantee thereof for payment more than 30 days after the date on which such payment became due or was provided for, whichever is later;
     (3) any estate, inheritance, gift, sale, transfer, personal property or similar tax, duty, assessment or other governmental charge;
     (4) any tax, duty, assessment or other governmental charge which is payable otherwise than by withholding or deduction from payments of (or in respect of) principal of or any premium or interest on the Securities or the Guarantee(s) thereof;
     (5) any tax, duty, assessment or other governmental charge that is imposed or withheld by reason of the failure to comply by the Holder or the beneficial owner of a Security with a request of the Company or the Guarantor addressed to the Holder (A) to provide information concerning the nationality, residence or identity of the Holder or such beneficial owner or (B) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (A) or (B), is required or imposed by statute, treaty, regulation or administrative practice of the Taxing Jurisdiction

 

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as a precondition to exemption from all or part of such tax, assessment or other governmental charge;
     (6) any withholding or deduction that is imposed on a payment to an individual and required to be made pursuant to any European Union Directive on the taxation of savings implementing the conclusions of the ECOFIN (European Union Economic and Finance Ministers) Counsel Meeting of 26-27 November 2000 or any law implementing or complying with or introduced in order to conform to such Directive; or
     (7) any combination of items (1), (2), (3), (4), (5) and (6).
          Additionally, Additional Amounts shall not be paid with respect to any payment in respect of any Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such Additional Amounts had it been the Holder of such Security.
          Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of, any Security of any series (or any payments pursuant to the Guarantee thereof) such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section and express mention of the payment of Additional Amounts in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
          The provisions of this Section 1005 shall apply mutatis mutandis to any withholding or deduction for or on account of any present or future taxes, assessments or governmental charges of whatever nature of any jurisdiction in which any successor Person to the Company or the Guarantor is organized, tax resident or engaged in business or any political subdivision or taxing authority thereof or therein.
          SECTION 1006. Limitation on Liens.
          The Guarantor will not itself, and will not permit any Restricted Subsidiary to, create, incur, issue, assume or guarantee any Capital Markets Indebtedness secured by any Lien on any Principal Property owned by the Guarantor or any Restricted Subsidiary, or upon any shares of stock of or Debt owed to any Restricted Subsidiary (such shares of stock or Debt of any Restricted Subsidiary being called “Restricted Securities”), without in any such case effectively providing that the Securities (together with, if the Guarantor shall so determine, any other Capital Markets Indebtedness of the Guarantor 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 Capital Markets Indebtedness, so long as such secured Capital Markets Indebtedness shall be so secured, unless, after giving effect thereto, the aggregate principal amount of all such secured Capital Markets Indebtedness then outstanding plus the Attributable Debt of the Guarantor and its Restricted Subsidiaries in respect of sale and leaseback transactions (as defined in Section 1007) involving Principal Properties entered into after the date of the first

 

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issuance by the Company of Securities issued pursuant to this Indenture (other than sale and leaseback transactions permitted by paragraph (b) of Section 1007) would not, with respect to a series of Securities, exceed an amount equal to a certain percentage, set forth in the Board Resolution, Officer’s Certificate or supplemental indenture establishing such series, of Consolidated Net Tangible Assets; provided, however, that nothing contained in this Section shall prevent, restrict or apply to, and there shall be excluded from secured Capital Markets Indebtedness in any computation under this Section, Capital Markets Indebtedness secured by:
     (a) Liens on any Principal Property or Restricted Securities of the Restricted Subsidiary or any Principal Property of the Guarantor existing as of the date of the first issuance by the Company of Securities issued pursuant to this Indenture;
     (b) Liens on any property or securities of any corporation existing at the time such corporation becomes a Restricted Subsidiary, or arising thereafter (i) otherwise than in connection with the borrowing of money arranged thereafter and (ii) pursuant to contractual commitments entered into prior to and not in contemplation of such corporation’s becoming a Restricted Subsidiary;
     (c) Liens arising by operation of law in the ordinary course of business and securing amounts not more than 60 days overdue;
     (d) Liens created on an undertaking or asset in favor of a governmental or quasi-governmental (whether national, local or regional) or supra-governmental body in respect of the financing of that undertaking or asset at a preferential rate which secures only the payment or repayment of the financing for that undertaking or asset;
     (e) Liens created in respect of any margin or collateral delivered or otherwise provided in connection with metal transactions;
     (f) Liens on any Principal Property or Restricted Securities of the Restricted Subsidiary or any Principal Property of the Guarantor existing at the time of acquisition thereof (including acquisition through merger or consolidation) or securing the payment of all or any part of the purchase price or construction cost thereof or securing any Debt incurred prior to, at the time of or within 12 months after, the acquisition of such Principal Property or Restricted Securities or the completion of any such construction, whichever is later, for the purpose of financing all or any part of the purchase price or construction cost thereof (provided such Liens are limited to such Principal Property or Restricted Securities, to improvements on such Principal Property and to any other property or assets not then constituting a Principal Property or Restricted Securities);
     (g) Liens on any Principal Property to secure all or any part of the cost of exploration, drilling, development, operation, construction, alteration, repair, improvement or rehabilitation, of all or any part of such Principal Property, or to secure Debt incurred prior to, at the time of or within 12 months after, the completion of such exploration, drilling, development, operation, construction, alteration, repair, improvement or rehabilitation, whichever is later, for the purpose of financing all or any part of such cost (provided such Liens are limited to such Principal Property,

 

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improvements thereon and any other property or assets not then constituting a Principal Property);
     (h) Liens which secure Debt owing by a Restricted Subsidiary to the Guarantor or to another Restricted Subsidiary;
     (i) Liens on any property, shares of stock, or indebtedness existing at the time of acquisition thereof from a corporation which is consolidated with or merged into, or substantially all of the assets of which are acquired by, the Guarantor or a Restricted Subsidiary;
     (j) any deposit or pledge of assets (1) with any surety company or clerk of any court, or in escrow, as collateral in connection with, or in lieu of, any bond on appeal from any judgment or decree against the Guarantor or a Restricted Subsidiary, or in connection with other proceedings or actions at law or in equity by or against the Guarantor or a Restricted Subsidiary, or (2) as security for the performance of any contract or undertaking not directly or indirectly related to the borrowing of money or the securing of indebtedness, if made in the ordinary course of business, or (3) with any governmental agency, which deposit or pledge is required or permitted to qualify the Guarantor or a Restricted Subsidiary to conduct business, to maintain self-insurance, or to obtain the benefits of any law pertaining to workers’ compensation, unemployment insurance, old age pensions, social security, or similar matters, or (4) made in the ordinary course of business to obtain the release of mechanics’, workmen’s, repairmen’s, warehousemen’s or similar liens, or the release of property in the possession of a common carrier;
     (k) Liens in favor of the government bodies, or any department, agency or instrumentality or political subdivision of such government bodies, to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of constructing or improving the property subject to such Liens and Liens given to secure indebtedness incurred in connection with the financing of construction of pollution control facilities;
     (l) Liens existing on property acquired by the Guarantor or a Restricted Subsidiary through the exercise of rights arising out of defaults on receivables acquired in the ordinary course of business;
     (m) judgment Liens, so long as the finality of such judgment is being contested in good faith and execution thereon is stayed;
     (n) Liens for taxes or assessments or governmental charges or levies not yet due or delinquent, or which can thereafter be paid without penalty, or which are being contested in good faith by appropriate proceedings; landlord’s Liens on property held under lease; and any other Liens of a nature similar to those hereinabove described in this clause (n) which do not, in the opinion of the Guarantor, materially impair the use of such

 

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property in the operation of the business of the Guarantor or a Restricted Subsidiary or the value of such property for the purposes of such business;
     (o) any transaction characterized as a sale of receivables (retail or wholesale) but reflected as secured indebtedness on a balance sheet in conformity with International Financial Reporting Standards then in effect;
     (p) Liens on Margin Stock owned by the Guarantor and its Restricted Subsidiaries to the extent such Margin Stock so mortgaged exceeds 25% of the fair market value of the sum of the Principal Property of the Guarantor and the Restricted Subsidiaries plus the shares of stock (including Margin Stock) and indebtedness issued or incurred by the Restricted Subsidiaries;
     (q) any Lien on any Principal Property of the Guarantor or the Restricted Subsidiary or on the Restricted Securities of the Restricted Subsidiary in relation to which Project Finance Indebtedness has been incurred to secure that Project Finance Indebtedness; and
     (r) Liens for the sole purpose of extending, renewing or replacing in whole or in part Debt secured by any Lien referred to in clauses (a) to (q), inclusive, or in this clause (r); provided, however, that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement, and that such extension, renewal or replacement shall be limited to all or a part of the property which secured the Lien so extended, renewed or replaced (plus improvements on such property).
          For the purposes of this Section 1006 and Section 1007, the giving of a guarantee which is secured by a Lien on a Principal Property or Restricted Securities, and the creation of a Lien on a Principal Property or Restricted Securities to secure Capital Markets Indebtedness which existed prior to the creation of such Lien, shall be deemed to involve the creation of Capital Markets Indebtedness in an amount equal to the principal amount guaranteed or secured by such Lien; but the amount of Capital Markets Indebtedness secured by Liens on Principal Properties and Restricted Securities shall be computed without cumulating the underlying indebtedness with any guarantee thereof or Lien securing the same.
          For purposes of this Section 1006 and Section 1007, the following shall not be deemed to be Liens securing Capital Markets Indebtedness and, accordingly, nothing contained in this Section or Section 1007 shall prevent, restrict or apply to: (a) any acquisition by the Guarantor or any Restricted Subsidiary of any property or assets subject to any reservation or exception under the terms of which any vendor, lessor or assignor creates, reserves or excepts or has created, reserved or excepted an interest in any mineral and/or the proceeds thereof, any royalty, production payment, interest in net proceeds or profits, right to take production in kind, easement, right of way, surface use right, water right or other interest in real property, (b) any lien created to secure our portion of someone else’s expenses to develop or conduct operations with respect to mineral resources on a property in which the Company or a Restricted Subsidiary has an interest, (c) any conveyance or assignment under the terms of which the Guarantor or any Restricted Subsidiary conveys or assigns to any Person or Persons an interest in any mineral

 

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and/or the proceeds thereof, any royalty, production payment, interest in net proceeds or profits, right to take production in kind, easement, right of way, surface use right, water right or other interest in real property, or (d) any Lien upon any property or assets owned or leased by the Guarantor or any Restricted Subsidiary or in which the Guarantor or any Restricted Subsidiary owns an interest to secure (i) to the Person or Persons paying the expenses of developing and/or conducting operations for the recovery, storage, transportation and/or sale of the mineral resources of the said property (or property with which it is utilized) the payment to such Person or Persons of the Guarantor’s or the Restricted Subsidiary’s proportionate part of such development and/or operating expense, (ii) to the other Persons who hold an interest in the property or assets the performance of the obligations of the Guarantor or the Restricted Subsidiary in connection therewith.
          SECTION 1007. Limitation on Sale and Leaseback Transactions.
          The Guarantor will not itself, and will not permit any Restricted Subsidiary to, enter into any arrangement after the date of the first issuance by the Company of Securities issued pursuant to this Indenture, with any bank, insurance company or other lender or investor (other than the Guarantor or another Restricted Subsidiary) providing for the leasing by the Guarantor or any such Restricted Subsidiary of any Principal Property (except a lease for a temporary period not to exceed three years by the end of which it is intended that the use of such Principal Property by the lessee will be discontinued), which was or is owned or leased by the Guarantor or a Restricted Subsidiary and which has been or is to be sold or transferred more than 12 months after the acquisition thereof or after the completion of construction and commencement of full operation thereof by the Guarantor or 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:
     (a) the Attributable Debt of the Guarantor and its Restricted Subsidiaries in respect of such sale and leaseback transaction and all other sale and leaseback transactions entered into after the date of the first issuance by the Company of Securities issued pursuant to this Indenture (other than such sale and leaseback transactions as are permitted by paragraph (b) below), plus the aggregate principal amount of Debt secured by Liens on Principal Properties and Restricted Securities then outstanding (excluding any such Debt secured by permitted Liens covered in Section 1006) without equally and ratably securing the Securities, would not, with respect to a series of Securities, exceed a certain percentage, set forth in the Board Resolution, Officer’s Certificate or supplemental indenture establishing such series, of Consolidated Net Tangible Assets, or
     (b) the Guarantor, within 12 months after the sale or transfer, applies or causes a Restricted Subsidiary to apply an amount equal to the greater of the net proceeds of such sale or transfer or fair market value of the Principal Property so sold and leased back at the time of entering into such sale and leaseback transaction (in either case as determined by any two directors, or any director and secretary, of the Guarantor) to the retirement of Securities of any series or other Debt of the Guarantor (other than Debt subordinated to the Securities) or Debt of a Restricted Subsidiary, having a stated maturity more than 12 months from the date of such application or which is extendible at the option of the

 

 

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obligor thereon to a date more than 12 months from the date of such application (and, unless otherwise expressly provided with respect to any one or more series of Securities, any redemption of Securities pursuant to this provision shall not be deemed to constitute a refunding operation or anticipated refunding operation for the purposes of any provision limiting the Company’s right to redeem Securities of any one or more such series when such redemption involves a refunding operation or anticipated refunding operation); provided that the amount to be so applied shall be reduced by (i) the principal amount of Securities delivered within 12 months after such sale or transfer to the Trustee for retirement and cancellation, and (ii) the principal amount of any such Debt of the Guarantor or a Restricted Subsidiary, other than Securities, voluntarily retired by the Guarantor or a Restricted Subsidiary within 12 months after such sale or transfer. Notwithstanding the foregoing, no retirement referred to in this paragraph (b) may be effected by payment at maturity or pursuant to any mandatory sinking fund payment or any mandatory prepayment provision, or
     (c) the Guarantor or such Restricted Subsidiary would be entitled, pursuant to Section 1006, to incur Debt secured by a Lien on the Principal Property to be leased without equally and ratably securing the Securities, or
     (d) the Guarantor shall, at or prior to the time of entering into the sale and leaseback transaction, enter into a bona fide commitment or commitments to expend for the acquisition or improvement of a Principal Property an amount at least equal to the fair value (as so determined) of the property sold and leased back.
          Notwithstanding the foregoing, where the Guarantor or any Restricted Subsidiary is the lessee in any sale and leaseback transaction, Attributable Debt shall not include any Debt resulting from the guarantee by the Guarantor or any other Restricted Subsidiary of the lessee’s obligation thereunder.
          SECTION 1008. Waiver of Certain Covenants
          The Company and the Guarantor, as the case may be, may, with respect to all series of Securities, omit in any particular instance to comply with any term, provision or condition set forth in Sections 1006 and 1007, inclusive, or, as specified pursuant to Section 301(15) for Securities, in any covenants of the Company or the Guarantor added to Article Ten pursuant to Section 301(14) or Section 301(15) in connection with Securities, if before or after the time for such compliance the Holders of at least a majority in principal amount of all Outstanding Securities of all series, by Act of such Holders voting as a single class, 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 Guarantor and the duties of the Trustee to Holders of Securities of all series in respect of any such term, provision or condition shall remain in full force and effect.

 

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          SECTION 1009. Calculation of Original Issue Discount
          While any series of Original Issue Discount Security is outstanding, the Company shall provide to the Trustee by December 31 of each year such information in the Company’s possession as the Trustee reasonably requires to enable the Trustee to prepare and file any form required to be submitted by the Company to the Internal Revenue Service and to the Holders of any series of Securities relating to original issue discount, including, without limitation, Form 1099-OID or any successor form.
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 the terms of such Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any series) 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 or pursuant to a Board Resolution. In case of any redemption at the election of the Company of less than all of the Securities of a series, 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 and of the principal amount of Securities of such series 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 issued on the same day with the same terms are to be redeemed, 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 issued on the same day with the same terms 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 portions of the principal of Securities of such series; provided, however, that no such partial redemption shall reduce the portion of the principal amount of a Security not redeemed to less than the minimum authorized denomination for Securities of such series established pursuant to Section 301.
          The Trustee shall promptly notify the Company and the Security Registrar (if other than itself) in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.

 

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          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 Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.
          SECTION 1104. Notice of Redemption.
          Except as otherwise specified as contemplated by Section 301, notice of redemption shall be given in the manner provided for in Section 106 not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, but failure to give such notice in the manner herein provided to the Holder of any Security designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other such Security or portion thereof.
          All notices of redemption shall state:
     (1) the Redemption Date,
     (2) the Redemption Price and the amount of accrued interest to the Redemption Date payable as provided in Section 1106, if any,
     (3) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed,
     (4) in case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the Holder will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed,
     (5) that on the Redemption Date, the Redemption Price and accrued interest, if any, to the Redemption Date payable as provided in Section 1106 will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
     (6) the Place or Places of Payment where such Securities, together in the case of Bearer Securities with all coupons appertaining thereto, if any, maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price and accrued interest, if any,
     (7) that the redemption is for a sinking fund, if such is the case,
     (8) that, unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by all coupons maturing subsequent to the Redemption Date or the amount of any such

 

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missing coupon or coupons will be deducted from the Redemption Price unless security or indemnity satisfactory to the Company, the Trustee and any Paying Agent is furnished,
     (9) if Bearer Securities of any series are to be redeemed and any Registered Securities of such series are not to be redeemed, and if such Bearer Securities may be exchanged for Registered Securities not subject to redemption on such Redemption Date pursuant to Section 305 or otherwise, the last date, as determined by the Company, on which such exchanges may be made; and
     (10) The CUSIP number, if any.
          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 and provision of such notice information to the Trustee at least 10 days prior to the date such notice of redemption is requested to be sent to the Holders, by the Trustee in the name and at the expense of the Company.
          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) no later than 2:00 p.m. (New York time) on the Business Day prior to such Redemption Date an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the Redemption Price of, and accrued interest, if any, on, all the Securities which are to be redeemed on that date.
          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 in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) (together with accrued interest, if any, to the Redemption Date), and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest, if any) such Securities shall, if the same were interest-bearing, cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below, shall be void. Upon surrender of any such Security for redemption in accordance with said notice, together with all coupons, if any, appertaining thereto maturing after the Redemption Date, such Security shall be paid by the Company at the Redemption Price, together with accrued interest, if any, to the Redemption Date; provided, however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender

 

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of coupons for such interest; and provided further that installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall 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 Bearer Security surrendered for redemption shall not be accompanied by all appurtenant coupons maturing after the Redemption Date, such Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest represented by coupons shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of those coupons.
          SECTION 1107. Securities Redeemed in Part.
          Any Security which is to be redeemed only in part (pursuant to the provisions of this Article or of Article Twelve) 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 such Holder’s attorney duly authorized in writing), and the Company shall execute, the Guarantor shall execute the Guarantee noted or endorsed on, 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, 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. However, if less than all the Securities of any series with differing issue dates, interest rates and stated maturities are to be redeemed, the Company in its sole discretion shall select the particular Securities to be redeemed and shall notify the Trustee in writing thereof at least 45 days prior to the relevant redemption date.
          SECTION 1108. Optional Redemption Due to Changes in Tax Treatment.
          Each series of Securities may be redeemed at the option of the Company or the Guarantor (or their successors) in whole but not in part at any time (except in the case of Securities that have a variable rate of interest, which may be redeemed on any Interest Payment Date) at a Redemption Price equal to the principal amount thereof plus accrued interest to the date fixed for redemption (except in the case of Outstanding Original Issue Discount Securities which may be redeemed at the Redemption Price specified by the terms of such series of Securities) if, (i) the Company or the Guarantor is or would be required to pay Additional Amounts as a result of any change in or amendment to the laws or any regulations or rulings promulgated thereunder of a Taxing Jurisdiction or any change in the official application or interpretation of such laws, regulations or rulings, or any change in the official application or

 

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interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which a Taxing Jurisdiction is a party, which change, execution or amendment becomes effective on or after the date of issuance of such series pursuant to Section 301(or in the case of a successor Person to the Company or the Guarantor, the date on which such successor Person became such or in the case of an assumption by the Guarantor or its Subsidiaries of obligations of the Company under the Securities, the date of such assumption), or (ii) as a result of any change in the official application or interpretation of, or any execution of or amendment to, any treaty or treaties affecting taxation to which a Taxing Jurisdiction is a party, which change, execution or amendment is proposed and becomes effective on or after a date on which the Guarantor or any of its Subsidiaries (an “Intercompany Debtor”) borrows money from the Company, the Intercompany Debtor is or would be required to deduct or withhold tax on any payment to the Company to enable the Company to make any payment of principal, premium, if any, or interest, and the payment of such Additional Amounts, in the case of clause (i), or such deductions or withholding, in the case of clause (ii), cannot be avoided by the use of any reasonable measures available to the Company, the Guarantor or the Intercompany Debtor. Prior to the giving of notice of redemption of such Securities pursuant to this Indenture, the Company will deliver to the Trustee an Officers’ Certificate, stating that the Company is entitled to effect such redemption and setting forth in reasonable detail a statement of circumstances showing that the conditions precedent to the right of the Company to redeem such Securities pursuant to this Section have been satisfied.
ARTICLE TWELVE
SINKING FUNDS
          SECTION 1201. Applicability of Article.
          Retirements of Securities of any series pursuant to any sinking fund shall be made in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article.
          The minimum amount of any sinking fund payment provided for by the terms of Securities of any series 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 Securities of any series is herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any mandatory 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 of any series as provided for by the terms of Securities of such series.
          SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
          Subject to Section 1203, in lieu of making all or any part of any mandatory sinking fund payment with respect to any Securities of a series in cash, the Company may at its option (1) deliver to the Trustee Outstanding Securities of a series (other than any previously called for redemption) theretofore purchased or otherwise acquired by the Company together in the case of any Bearer Securities of such series with all unmatured coupons appertaining thereto, and/or (2) receive credit for Securities of such series which have been previously delivered to the

 

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Trustee by the Company or for Securities of such 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 mandatory sinking fund payment with respect to the Securities of the same series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided, however, that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such mandatory 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 Securities of any series, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 1202, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and will also deliver to the Trustee any Securities to be so delivered and credited. If such Officers’ Certificate shall specify an optional amount to be added in cash to the next ensuing mandatory sinking fund payment, the Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days before 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
REPAYMENT AT OPTION OF HOLDERS
          SECTION 1301. Applicability of Article.
          Repayment of Securities of any series before their Stated Maturity at the option of Holders thereof shall be made in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article.
          SECTION 1302. Repayment of Securities.
          Securities of any series subject to repayment in whole or in part at the option of the Holders thereof will, unless otherwise provided in the terms of such Securities, be repaid at a

 

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price equal to the principal amount thereof, together with interest, if any, thereon accrued to the Repayment Date specified in or pursuant to the terms of such Securities. The Company and the Guarantor covenant that at least one Business Day prior to the Repayment Date the Company or the Guarantor will deposit with the Trustee or with a Paying Agent (or, if the Company or the Guarantor is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) no later than 2:00 p.m. (New York time) on the Business Day prior to such Repayment Date an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal (or, if so provided by the terms of the Securities of any series, a percentage of the principal) of and (except if the Repayment Date shall be an Interest Payment Date) accrued interest, if any, on, all the Securities or portions thereof, as the case may be, to be repaid on such date.
          SECTION 1303. Exercise of Option.
          Securities of any series subject to repayment at the option of the Holders thereof will contain an “Option to Elect Repayment” form on the reverse of such Securities. To be repaid at the option of the Holder, any Security so providing for such repayment, with the “Option to Elect Repayment” form on the reverse of such Security duly completed by the Holder (or by the Holder’s attorney duly authorized in writing), must be received by the Company at the Place of Payment therefor specified in the terms of such Security (or at such other place or places or which the Company shall from time to time notify the Holders of such Securities) not earlier than 45 days nor later than 30 days prior to the Repayment Date. If less than the entire principal amount of such Security is to be repaid in accordance with the terms of such Security, the principal amount of such Security to be repaid, in increments of the minimum denomination for Securities of such series, and the denomination or denominations of the Security or Securities to be issued to the Holder for the portion of the principal amount of such Security surrendered that is not to be repaid, must be specified. The principal amount of any Security providing for repayment at the option of the Holder thereof may not be repaid in part if, following such repayment, the unpaid principal amount of such Security would be less than the minimum authorized denomination of Securities of the series of which such Security to be repaid is a part. Except as otherwise may be provided by the terms of any Security providing for repayment at the option of the Holder thereof, exercise of the repayment option by the Holder shall be irrevocable unless waived by the Company and the Guarantor.
          SECTION 1304. When Securities Presented for Repayment Become Due and Payable.
          If Securities of any series providing for repayment at the option of the Holders thereof shall have been surrendered as provided in this Article and as provided by or pursuant to the terms of such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become due and payable and shall be paid by the Company or the Guarantor on the Repayment Date therein specified, and on and after such Repayment Date (unless the Company or the Guarantor shall default in the payment of such Securities on such Repayment Date) such Securities shall, if the same were interest-bearing, cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be repaid, except to the extent provided

 

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below, shall be void. Upon surrender of any such Security for repayment in accordance with such provisions, together with all coupons, if any, appertaining thereto maturing after the Repayment Date, the principal amount of such Security so to be repaid shall be paid by the Company or the Guarantor, together with accrued interest, if any, to the Repayment Date; provided, however, that coupons whose Stated Maturity is on or prior to the Repayment Date shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified pursuant to Section 301, only upon presentation and surrender of such coupons; and provided further that, in the case of Registered Securities, installments of interest, if any, whose Stated Maturity is on or prior to the Repayment Date shall be payable (but without interest thereon, unless the Company and the Guarantor shall default in the payment thereof) 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 Bearer Security surrendered for repayment shall not be accompanied by all appurtenant coupons maturing after the Repayment Date, such Security may be paid after deducting from the amount payable therefor as provided in Section 1302 an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or coupons may be waived by the Company, the Guarantor and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made as provided in the preceding sentence, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest represented by coupons shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of those coupons.
          If the principal amount of any Security surrendered for repayment shall not be so repaid upon surrender thereof, such principal amount (together with interest, if any, thereon accrued to such Repayment Date) shall, until paid, bear interest from the Repayment Date at the rate of interest set forth in such Security or Yield to Maturity (in the case of Original Issue Discount Securities).
          SECTION 1305. Securities Repaid in Part
          Upon surrender of any Registered Security which is to be repaid in part only, the Company shall execute, the Guarantor shall execute the Guarantee noted or endorsed on, and the Trustee shall authenticate and deliver to the Holder of such Security, without service charge and at the expense of the Company, a new Registered Security or Securities of the same series, of any authorized denomination specified by the Holder, in an aggregate principal amount equal to and in exchange for the portion of the principal of such Security so surrendered which is not to be repaid.

 

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ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
          SECTION 1401. Applicability of Article; Company’s and Guarantor’s Option to Effect Defeasance or Covenant Defeasance.
          Unless provided otherwise, pursuant to Section 301 the provisions of such Section or Sections, as the case may be, together with the other provisions of this Article (with such modifications thereto as may be specified pursuant to Section 301 with respect to any Securities), shall be applicable to such Securities and any coupons appertaining thereto, and the Company and the Guarantor may at their option by Board Resolution, at any time, with respect to such Securities and any coupons appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403 (if applicable) be applied to such Outstanding Securities and any coupons appertaining thereto upon compliance with the conditions set forth below in this Article.
          SECTION 1402. Defeasance and Discharge.
          Upon their exercise of the above option applicable to this Section with respect to any Securities of or within a series, each of the Company and the Guarantor shall be deemed to have been discharged from their respective obligations with respect to such Outstanding Securities and any coupons appertaining thereto and under the Guarantee in respect thereof on the date the conditions set forth in Section 1404 are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance means that the Company and the Guarantor shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Securities and any coupons appertaining thereto and under the Guarantee in respect thereof which shall thereafter be deemed to be “Outstanding” only for the purposes of Section 1405 and the other Sections of this Indenture referred to in clauses (A) and (B) of this Section, and to have satisfied all its other obligations under such Securities and any coupons appertaining thereto and under the Guarantee in respect thereof and this Indenture insofar as such Securities and any coupons appertaining thereto and the Guarantee in respect thereof are concerned (and the Trustee, at the expense of the Company and the Guarantor shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of such Outstanding Securities and any coupons appertaining thereto to receive, solely from the trust fund described in Section 1405 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest, if any, on such Securities and any coupons appertaining thereto when such payments are due, (B) the Company’s and the Guarantor’s obligations with respect to such Securities under Sections 305, 306, 1002 and 1003 and with respect to the payment of Additional Amounts, to the extent then unknown, on such Securities as contemplated by Section 1005, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (D) this Article Fourteen. Subject to compliance with this Article Fourteen, the Company or the Guarantor may exercise its option under this Section notwithstanding the prior exercise of its option under Section 1403 with respect to such Securities and any coupons appertaining thereto.

 

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          SECTION 1403. Covenant Defeasance.
          Upon the Company’s or the Guarantor’s exercise of the above option applicable to this Section with respect to any Securities of or within a series, the Company and the Guarantor shall be released from their respective obligations under Sections 1006 and 1007, and, if specified pursuant to Section 301, its obligations under any other covenant, with respect to such Outstanding Securities and any coupons appertaining thereto and the Guarantee in respect thereof on and after the date the conditions set forth in Section 1404 are satisfied (hereinafter, “covenant defeasance”), and such Securities and any coupons appertaining thereto shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with Sections 1006 and 1007, or such other covenant, but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities and any coupons appertaining thereto, the Company and the Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section or such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 501(5) or 501(8) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Securities and any coupons appertaining thereto and the Guarantee in respect thereof shall be unaffected thereby.
          SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
          The following shall be the conditions to application of Section 1402 or Section 1403 to any Outstanding Securities of or within a series and any coupons appertaining thereto and the Guarantee in respect thereof:
     (a) The Company or the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 607 who shall agree to comply with the provisions of this Article Fourteen 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 benefit of the Holders of such Securities and any coupons appertaining thereto, (1) an amount (in such Currency in which such Securities and any coupons appertaining thereto are then specified as payable at Stated Maturity), or (2) Government Obligations applicable to such Securities and coupons appertaining thereto (determined on the basis of the Currency in which such Securities and coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and interest, if any, on such Securities and any coupons appertaining thereto, money in an amount, or (3) a combination thereof in an amount, 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 other qualifying trustee) to pay and discharge, (i) the principal of (and premium, if

 

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any) and interest, if any, and any Additional Amounts then known on such Outstanding Securities and any coupons appertaining thereto on the Stated Maturity of such principal or installment of principal or interest and (ii) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any coupons appertaining thereto on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and any coupons appertaining thereto. Before such a deposit, the Company or the Guarantor, as the case may be, may give to the Trustee, in accordance with Section 1102 hereof, a notice of its election to redeem all or any portion of such Outstanding Securities at a future date in accordance with the terms of the Securities of such series and Article Eleven hereof, which notice shall be irrevocable. Such irrevocable redemption notice, if given, shall be given effect in applying the foregoing.
     (b) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company or the Guarantor is a party or by which it is bound.
     (c) No Default or Event of Default with respect to such Securities and any coupons appertaining thereto shall have occurred and be continuing on the date of such deposit or, insofar as Sections 501(6) and 501(7) are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
     (d) In the case of an election under Section 1402, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (1) the Company or the Guarantor has received from, or there has been published by, the Internal Revenue Service a ruling, or (2) since the date of execution of this Indenture, there has been a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities and any coupons appertaining thereto will not recognize income, gain or loss for United States federal income tax purposes as a result of such defeasance and will be subject to United States federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred.
     (e) In the case of an election under Section 1403, the Company or the Guarantor shall have delivered to the Trustee Opinions of Counsel to the effect that the Holders of such Outstanding Securities and any coupons appertaining thereto will not recognize income, gain or loss for United States federal income tax purposes as a result of such covenant defeasance and will be subject to United States federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.
     (f) The Company or the Guarantor shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance under Section 1402 or the covenant defeasance under Section 1403 (as the case may be) have been complied with.

 

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     (g) Notwithstanding any other provisions of this Section, such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company or the Guarantor in connection therewith pursuant to Section 301.
          SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.
          Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (or other property as may be provided pursuant to Section 301) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 1405, the “Trustee”) pursuant to Section 1404 in respect of any Outstanding Securities of any series and any coupons appertaining thereto shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and any coupons appertaining thereto and this Indenture, to the payment, either directly or through any Paying Agent (including the Company or the Guarantor acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities and any coupons appertaining thereto of all sums due and to become due thereon in respect of principal (and premium, if any) and interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law.
          Unless otherwise specified with respect to any Security pursuant to Section 301, if, after a deposit referred to in Section 1404(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 312(b) or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 1404(a) has been made in respect of such Security, or (b) a Conversion Event occurs as contemplated in Section 312(d) or 312(e) or by the terms of any Security in respect of which the deposit pursuant to Section 1404(a) has been made, the indebtedness represented by such Security and any coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any) and interest and Additional Amounts, if any, on such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on the applicable Market Exchange Rate for such Currency in effect on the second Business Day prior to each payment date, except, with respect to a Conversion Event, for such Currency in effect (as nearly as feasible) at the time of the Conversion Event.
          The Company or the Guarantor, as the case may be, shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 1404 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 such Outstanding Securities and any coupons appertaining thereto.
          Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the Company Request, or the Guarantor, as the case may be, upon the Guarantor Request, any money or Government Obligations (or other

 

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property and any proceeds therefrom) held by it as provided in Section 1404 which, in the opinion of a nationally recognized firm of independent public 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 a defeasance or covenant defeasance, as applicable, in accordance with this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
          SECTION 1501. Purposes for Which Meetings May Be Called.
          If Securities of a series are issuable as Bearer Securities, a meeting of Holders of Securities of such series may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series.
          SECTION 1502. Call, Notice and Place of Meetings.
          (a) The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 1501, to be held at such time and at such place in The City of New York or in London as the Trustee shall determine. Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided for in Section 106, not less than 21 nor more than 180 days prior to the date fixed for the meeting.
          (b) In case at any time the Company or the Guarantor, pursuant in either case to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding Securities of any series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in Section 1501, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company, the Guarantor or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place in The City of New York or in London for such meeting and may call such meeting for such purposes by giving notice thereof as provided in paragraph (a) of this Section.
          SECTION 1503. Persons Entitled to Vote at Meetings.
          To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Person entitled to vote at such meeting and their counsel, any representatives of the Trustee

 

95

and its counsel and any representatives of the Company, the Guarantor and their respective counsel.
          SECTION 1504. Quorum; Action.
          The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series; provided, however, that, if any action is to be taken at such meeting with respect to a consent or waiver which this Indenture expressly provides may be given by the Holders of not less than a specified percentage in principal amount of the Outstanding Securities of a series, the Persons entitled to vote such specified percentage in principal amount of the Outstanding Securities of such series shall constitute a quorum. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 1502(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of any adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Securities of such series which shall constitute a quorum.
          Subject to the foregoing, at the reconvening of any meeting adjourned for lack of a quorum the Persons entitled to vote 25% in principal amount of the Outstanding Securities of the relevant series at the time shall constitute a quorum for the taking of any action set forth in the notice of the original meeting.
          Except as limited by the proviso to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of such series; provided, however, that, except as limited by the proviso to Section 902, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding Securities of such series.
          Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be in writing and shall be binding on all the Holders of Securities of such series and the related coupons, whether or not present or represented at the meeting.

 

96

          Notwithstanding the foregoing provisions of this Section 1504, if any action is to be taken at a meeting of Holders of Securities of any series with respect to any request, demand, authorization, direction, notice, consent, waiver or other action that this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage in principal amount of all Outstanding Securities affected thereby, or of the Holders of such series and one or more additional series:
     (i) there shall be no minimum quorum requirement for such meeting; and
     (ii) the principal amount of the Outstanding Securities of such series that vote in favor of such request, demand, authorization, direction, notice, consent, waiver or other action shall be taken into account in determining whether such request, demand, authorization, direction, notice, consent, waiver or other action has been made, given or taken under this Indenture.
          SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings.
          (a) Notwithstanding any provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of a series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 104 and the appointment of any proxy shall be proved in the manner specified in Section 104 or by having the signature of the Person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized by Section 104 to certify to the holding of Bearer Securities. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 104 or other proof.
          (b) The Trustee shall, by an instrument in writing appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company, the Guarantor or by Holders of Securities as provided in Section 1502(b), in which case the Company, the Guarantor or the Holders of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting.
          (c) At any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount of the Outstanding Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.

 

97

          (d) Any meeting of Holders of Securities of any series duly called pursuant to Section 1502 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting, and the meeting may be held as so adjourned without further notice.
          SECTION 1506. Counting Votes and Recording Action of Meetings.
          The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the fact setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 1502 and, if applicable, Section 1504. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company, to the Guarantor and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE SIXTEEN
GUARANTEE OF SECURITIES
          SECTION 1601. Guarantee.
          This Section 1601 and Section 1602 apply to the Securities of any series to the extent that the form of the Guarantee to be endorsed on such Securities is not otherwise specifically established as contemplated by Section 301.
          The Guarantor hereby unconditionally guarantees to each Holder of a Security of each series authenticated and delivered by the Trustee the due and punctual payment of the principal (including any amount due in respect of original issue discount) of and any premium and interest on and Additional Amounts with respect to such Security, and the due and punctual payment of any sinking fund payments provided for pursuant to the terms of such Security, when and as the same shall become due and payable, whether at the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, and all other obligations of the Company to the Holders or the Trustee hereunder or thereunder, in accordance with the terms of such Security and of this Indenture. The Guarantor hereby agrees that its obligations hereunder shall be as if it were a principal debtor and not merely a surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any Security of any series or this Indenture, any failure to enforce the provisions of any Security of

 

98

any series or this Indenture, any waiver, modification, consent or indulgence granted to the Company with respect thereto, by the Holder of any Security of any series or the Trustee, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, the benefit of discussion, protest or notice with respect to any Security or the indebtedness evidenced thereby or with respect of any sinking fund payment required pursuant to the terms of a Security issued under this Indenture and all demands whatsoever, and covenants that this Guarantee will not be discharged with respect to any Security except by payment in full of the principal thereof and any premium and interest or Additional Amounts thereon or as provided in Article Four, Section 802 or Article Fourteen. The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, the Maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby.
          This Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment on any Company Security, in whole or in part, is rescinded or must otherwise be restored to the Company or the Guarantor upon the bankruptcy, liquidation or reorganization of the Company or otherwise.
          The Guarantor hereby waives, in favor of the Holders and the Trustee, any and all of its rights, protections, privileges and defenses provided by any applicable law to a guarantor and waives any right of set-off which the Guarantor may have against the Holder of a Security in respect of any amounts which are or may become payable by the Holder of a Security to the Company.
          The Guarantor shall be subrogated to all rights of each Holder of Securities against the Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of and any premium and interest on all the Securities of the same series and of like tenor shall have been paid in full.
          The Guarantee shall be governed by and construed in accordance with the laws of the State of New York. The Guarantor agrees to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Trustee or any Holders in enforcing any rights under the Guarantee.
          No past, present or future stockholder, officer, director, employee or incorporator of the Guarantor shall have any personal liability under the Guarantee set forth in this Section 1601 by reason of his or its status as such stockholder, officer, director, employee or incorporator.

 

99

          The Guarantee set forth in this Section 1601 shall not be valid or become obligatory for any purpose with respect to a Security until the certificate of authentication on such Security shall have been signed by or on behalf of the Trustee.
          SECTION 1602. Execution of Guarantee.
          To evidence its Guarantee to the Holders specified in Section 1601, the Guarantor hereby agrees to execute the Guarantee in substantially the form set forth in Section 204 to be endorsed on each Security authenticated and delivered by the Trustee. The Guarantor hereby agrees that its Guarantee set forth in Section 1601 shall remain in full force and effect notwithstanding any failure to endorse on each Security such Guarantee. Each such Guarantee shall be signed on behalf of the Guarantor by any two directors, or any director and secretary, of the Guarantor, prior to the authentication of the Security on which it is endorsed, and the delivery of such Security by the Trustee, after the due authentication thereof by the Trustee hereunder, shall constitute due delivery of the Guarantee on behalf of the Guarantor. Such signatures upon the Guarantee may be manual or facsimile signatures of any present, past or future such directors or officers and may be imprinted or otherwise reproduced below the Guarantee, and in case any such director or officer who shall have signed the Guarantee shall cease to hold such offices before the Security on which such Guarantee is endorsed shall have been authenticated and delivered by the Trustee or disposed of by the Company, such Security nevertheless may be authenticated and delivered or disposed of as though the person who signed the Guarantee had not ceased to hold such office of the Guarantor.
          This Indenture 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 Indenture.

 

 

          IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the day and year first above written.
         
  ANGLOGOLD ASHANTI HOLDINGS FINANCE PLC
 		  
  By:      
    Name:      
    Title:      
 
  ANGLOGOLD ASHANTI LIMITED
 		  
  By:      
    Name:      
    Title:      
     
  By:      
    Name:      
    Title:      
 
  THE BANK OF NEW YORK MELLON
 		  
  By:      
    Name:      
    Title:      

 

         
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
          This is to certify that as of the date hereof, and except as set forth below, the above-captioned Securities held by you for our account (i) are owned by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States federal income taxation regardless of its source (“United States persons(s)”), (ii) are owned by United States person(s) that are (a) foreign branches of United States financial institutions (financial institutions, as defined in United States Treasury Regulations Section 1.165-12(c)(1)(iv) are herein referred to as “financial institutions”) purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, on its own behalf or through its agent, that you may advise [Name of Issuer] or its agent that such financial institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are owned by United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or foreign financial institution described in clause (iii) above (whether or not also described in clause (i) or (ii)), this is to further certify that such financial institution has not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.
          As used herein, “United States” means the United States of America (including the states and the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.

A-1-1

 

          We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the above-captioned Securities held by you for our account in accordance with your Operating Procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date.
          This certificate excepts and does not relate to [U.S.$]__________ of such interest in the above-captioned Securities in respect of which we are not able to certify and as to which we understand an exchange for an interest in a Permanent Global Security or an exchange for and delivery of definitive Securities (or, if relevant, collection of any interest) cannot be made until we do so certify.
          We understand that this certificate may be required in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.
Dated:
         
[To be dated no earlier than the 15th day
prior to (i) the Exchange Date or (ii) the
relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
 		    
         
  [Name of Person Making Certification]

 		  
     
  (Authorized Signatory)   
  Name:      
  Title:      

A-1-2

 

EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CLEARSTREAM IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
          This is to certify that based solely on written certifications that we have received in writing, by tested telex or by electronic transmission from each of the persons appearing in our records as persons entitled to a portion of the principal amount set forth below (our “Member Organizations”) substantially in the form attached hereto, as of the date hereof, [U.S.$]__________ principal amount of the above-captioned Securities (i) is owned by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source (“United States person(s)”), (ii) is owned by United States person(s) that are (a) foreign branches of United States financial institutions (financial institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(iv) are herein referred to as “financial institutions”) purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such financial institution has agreed, on its own behalf or through its agent, that we may advise [Name of Issuer] or its agent that such financial institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) and, to the further effect, that financial institutions described in clause (iii) above (whether or not also described in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions.
          As used herein, “United States” means the United States of America (including the states and the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
          We further certify that (i) we are not making available herewith for exchange (or, if relevant, collection of any interest) any portion of the temporary global Security representing the above-captioned Securities excepted in the above-referenced certificates of Member Organizations and (ii) as of the date hereof we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member Organizations

A-2-1

 

with respect to any portion of the part submitted herewith for exchange (or, if relevant, collection of any interest) are no longer true and cannot be relied upon as of the date hereof.
          We understand that this certification is required in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.
Dated:
         
[To be dated no earlier than the Exchange
Date or the relevant Interest Payment Date
occurring prior to the Exchange Date, as
applicable]
 		    
         
  [EUROCLEAR BANK S.A./N.V., as Operator of the
Euroclear System]
[CLEARSTREAM]
 		  
  By      
       
       
 

A-2-2

EX-99.E 3 u09732exv99we.htm EXHIBIT 99.E exv99we
Exhibit 99.E
 
 
ANGLOGOLD ASHANTI HOLDINGS FINANCE PLC,
as Issuer
ANGLOGOLD ASHANTI LIMITED,
as Guarantor
THE BANK OF NEW YORK MELLON,
as Trustee
 
First Supplemental Indenture
Dated as of September 22, 2010
Supplemental to Indenture dated as of September 22, 2010
 
 
 

 

 

          First Supplemental Indenture, dated as of September 22, 2010 (this “Supplemental Indenture”), among ANGLOGOLD ASHANTI HOLDINGS FINANCE PLC, a corporation duly organized and existing under the laws of the Isle of Man (herein called the “Company”), having its principal office at 1st Floor, Atlantic House, 4-8 Circular Road, Douglas, Isle of Man, IM1 1AG, ANGLOGOLD ASHANTI LIMITED, a company duly organized and existing under the laws of South Africa (herein called the “Guarantor”), having its principal office at 76 Jeppe Street, Newtown, Johannesburg, 2001 (PO Box 62117, Marshalltown, 2107), South Africa, and THE BANK OF NEW YORK MELLON, a banking corporation duly organized and existing under the laws of the State of New York, having its principal corporate trust office at 101 Barclay Street, New York, New York 10286, as Trustee (herein called the “Trustee”), under the Indenture, dated as of September 22, 2010, among the Company, the Guarantor and the Trustee (the “Base Indenture” and as supplemented by this Supplemental Indenture, the “Indenture”).
WITNESSETH:
          WHEREAS, the Base Indenture provides for the issuance from time to time thereunder, in series, of Securities of the Company carrying the Guaranty of the Guarantor, and Section 301 of the Base Indenture provides for the establishment of the form and terms of Securities issued thereunder through one or more supplemental indentures, and the addition, modification or elimination of any provisions of the Base Indenture in respect of such Securities;
          WHEREAS, the Company and the Guarantor desire by this Supplemental Indenture to create a new series of Securities to be issuable under the Base Indenture, as supplemented by this Supplemental Indenture, and to be known as the Company’s 6.00% Mandatory Convertible Subordinated Bonds due 2013 (the “Bonds”), the principal amount of which is mandatorily exchangeable at Maturity (as defined herein) into American Depositary Shares (“ADSs”) of the Guarantor, each currently representing one ordinary share of the Guarantor, on the terms and under the conditions specified in this Supplemental Indenture;
          WHEREAS, the Company and the Guarantor have duly authorized the execution and delivery of this Supplemental Indenture to establish the Bonds as a series of Securities under the Base Indenture and to provide for, among other things, the issuance of and the form and terms of the Bonds and additional covenants for the benefit of the Holders thereof and the Trustee; and
          WHEREAS, all things necessary to make this Supplemental Indenture a valid and binding legal obligation of the Company and the Guarantor according to its terms have been done.
          NOW, THEREFORE, for and in consideration of the premises and the purchase and acceptance of the Bonds by the Holders thereof and for the purpose of setting forth, as provided in the Base Indenture, the form of the Bonds and the terms, provisions and conditions thereof, the Company and the Guarantor covenant and agree with the Trustee as follows:

 

 

1. Base Indenture; Definitions
     1.1 Provisions of the Base Indenture.
          Except insofar as herein otherwise expressly provided, all the definitions, provisions, terms and conditions of the Base Indenture shall remain in full force and effect. The Base Indenture, as amended and supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and the Base Indenture and this Supplemental Indenture shall be read, taken and considered as one and the same instrument for all purposes. To the extent any provision of this Supplement Indenture is inconsistent with any provision of the Base Indenture, the provision of this Supplemental Indenture shall govern.
     1.2 Definitions.
          For all purposes of this Supplemental Indenture and the Bonds, except as otherwise expressly provided or unless the subject matter or context otherwise requires:
          (a) any reference to a “Section” refers to a Section of this Supplemental Indenture;
          (b) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Supplemental Indenture as a whole and not to any particular Section or other subdivision;
          (c) all terms used in this Supplemental Indenture that are defined in the Base Indenture have the meanings assigned to them in the Base Indenture, except as otherwise provided in this Supplemental Indenture;
          (d) the term “Securities” as defined in the Base Indenture and as used in any definition therein, shall be deemed to include or refer to, as applicable, the Bonds; and
          (e) the following terms have the meanings given to them in this Section 1.2(e):
          “ADS Depositary” means the depositary for the Guarantor’s ordinary shares represented by the ADSs, currently The Bank of New York Mellon, pursuant to the Amended and Restated Deposit Agreement, dated as of June 3, 2008, among the ADS Depositary, the Guarantor and the holders and beneficial owners from time to time of American Depositary Receipts.
          “ADS Price” means (i) in the case of a Fundamental Change described in clause (a)(i) or (b) of the definition of Fundamental Change, in which the holders of the Guarantor’s ordinary shares receive only cash in such Fundamental Change, the cash amount paid per ADS; and (ii) otherwise, the average of the Daily VWAP of an ADS on each of the five consecutive Trading Days ending on, and including, the Trading Day immediately preceding the Effective Date of the Fundamental Change.
          “ADSs” has the meaning set forth in the recitals.

2

 

          “Allocable Amounts” means all amounts due or to become due on Company Senior Indebtedness or Guarantor Indebtedness less, if applicable, any amount which would have been paid to, and retained by, the holders of such Company Senior Indebtedness or Guarantor Indebtedness (whether as a result of receipt of payments by the holders of such Company Senior Indebtedness or Guarantor Indebtedness from the Company, the Guarantor or any other obligor thereon or from any holders of, or trustee in respect of, other Indebtedness that is subordinate and junior in right of payment to such Company Senior Indebtedness or Guarantor Indebtedness pursuant to any provision of such Indebtedness for the payment over of amounts received on account of such Indebtedness to the holders of such Company Senior Indebtedness or Guarantor Indebtedness or otherwise), but for the fact that such Company Senior Indebtedness or Guarantor Indebtedness is subordinate or junior in right of payment to (or subject to a requirement that amounts received on such Company Senior Indebtedness or Guarantor Indebtedness be paid over to obligees on) trade accounts payable or accrued liabilities arising in the ordinary course of business.
          “Anticipated Effective Date” has the meaning set forth in Section 2.6(b).
          “Approval Date” means the date, if any, on which Shareholder Conversion Approval is obtained.
          “Bonds” has the meaning set forth in the recitals.
          “Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in The City of New York, in South Africa or in the Isle of Man are authorized or obligated by law or executive order to close.
          “Company Proceeding” has the meaning set forth in Section 9.1(b).
          “Company Senior Indebtedness” means all Indebtedness of the Company except (i) any Indebtedness which is by its terms pari passu with the Bonds; and (ii) Indebtedness owed to a Subsidiary or Affiliate of the Company, including the Guarantor. Company Senior Indebtedness does not include shares of the Company’s capital stock or warrants, options or rights to acquire shares of the Company’s capital stock (but excluding any debt security that is convertible into, or exchangeable for, shares of the Company’s capital stock) or trade payables.
          “Conversion Agent” means initially the Trustee or such other office or agency subsequently designated by the Company where the Bonds may be presented for conversion.
          “Corporate Trust Office” means the principal corporate trust office of the Trustee at which, at any particular time, its corporate trust business shall be administered.
          “close of business” has the meaning set forth in Section 3.2(c).
          “current market price” has the meaning set forth in Section 3.2(a).
          “Daily Conversion Amount” means the amount of ADSs determined for each Trading Day during the Observation Period in accordance with Section 2.3 hereof.

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          “Daily VWAP” of an ADS (or other security for which a Daily VWAP must be determined) means, for any Trading Day, the volume-weighted average price per ADS (or other security) as displayed under the heading “Bloomberg VWAP” on Bloomberg page “AU <equity> AQR” (or its equivalent successor if such page is not available), or the corresponding Bloomberg VWAP page for such other security, in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one ADS (or other security) on such Trading Day as an internationally recognized investment bank retained for this purpose by the Company determines in good faith using a volume-weighted average method, which determination shall be conclusive).
          “Deferred Interest” means accrued and unpaid interest that has been deferred in accordance with Section 2.2(b), and interest on such deferred accrued and unpaid interest, to the extent permitted by applicable law, at a rate equal to the Stated Interest Rate calculated on the basis of a 360-day year of twelve 30-day months.
          “Deferral Period” has the meaning set forth in Section 2.2(b).
          “Dividend Threshold Amount” has the meaning set forth in Section 3.1(d).
          “DTC” has the meaning set forth in Section 2.1(b).
          “Effective Date” means the date on which a Fundamental Change becomes effective.
          “exchange property” has the meaning set forth in Section 4.1(a) hereof.
          “ex-dividend date” has the meaning set forth in Section 3.2(b).
          “Exempt Newco Scheme” means a Newco Scheme where immediately after completion of the relevant scheme of arrangement, the ordinary shares of Newco (or depositary or other receipts or certificates representing such ordinary shares) are admitted to listing and trading on either a national securities exchange registered under Section 6 of the U.S. Securities Exchange Act of 1934 or on the London Stock Exchange.
          “expiration date” has the meaning set forth in Section 3.1(e).
          “Fixed Conversion Rates” means each of the Maximum Conversion Rate and the Minimum Conversion Rate.
          “Fundamental Change” means the occurrence of any of the following events:
     (a) (i) an offer is made to all (or as nearly as may be practicable all) shareholders of the Guarantor (or all (or as nearly as may be practicable all) such shareholders of the Guarantor other than the offeror and/or any parties acting in concert (as defined in Section 440A of the South African Companies Act or Parts B and C of the South African Companies Act, 2008, whichever is then in force) with the offeror), to acquire all or a majority of the issued ordinary share capital of the Guarantor or if any

4

 

Person proposes a scheme with regard to such acquisition (other than an Exempt Newco Scheme) and (such offer or scheme having become or been declared unconditional in all respects) the right to cast more than 50% of the votes which may ordinarily be cast on a poll at a general meeting of the Guarantor’s shareholders has or will become unconditionally vested in the offeror and/or any such parties as aforesaid; provided, however, that a Fundamental Change will not be deemed to have occurred pursuant to this clause (a)(1) if at least 90% of the consideration received by holders of the Guarantor’s ordinary shares in the transaction or transactions under this clause (a)(i) consists of ordinary shares or shares of common stock that are listed on the NYSE, the NASDAQ Global Select Market or the NASDAQ Global Market and as a result of this transaction or transactions, the Bonds become convertible into such consideration; or
          (ii) any Person and/or any parties acting in concert (defined as aforesaid) shall own, acquire or control (or have the right to own, acquire or control) more than 50% of the issued ordinary share capital of the Guarantor or the right to cast more than 50% of the votes which may ordinarily be cast on a poll at a general meeting of shareholders of the Guarantor.
     (b) the Guarantor is involved in a consolidation with or merger into any other Person, or any merger of another Person into the Guarantor, or any other similar transaction or series of related transactions pursuant to which its ordinary shares will be converted into cash, securities or other property or the Guarantor sells, leases or transfers in one transaction or a series of related transactions all or substantially all of the property and assets of the Guarantor and its Subsidiaries; provided, however, that a Fundamental Change will not be deemed to have occurred pursuant to this clause (b) if at least 90% of the consideration received by holders of the Guarantor’s ordinary shares in the transaction or transactions under this clause (b) consists of ordinary shares or shares of common stock that are listed on the NYSE, the NASDAQ Global Select Market or the NASDAQ Global Market and as a result of this transaction or transactions, the Bonds become convertible into such consideration;
     (c) the ordinary shares of the Guarantor (or any other common equity security underlying the securities into which the Bonds become convertible in connection with a reorganization event) or the ADSs of the Guarantor (or any other security into which the Bonds become convertible in connection with a reorganization event) cease to be listed or quoted on the NYSE, the NASDAQ Global Select Market or the NASDAQ Global Market; or
     (d) the shareholders of the Guarantor approve any plan for the liquidation, dissolution or termination of the Guarantor.
          “Fundamental Change Conversion” has the meaning set forth in Section 2.6(a).
          “Fundamental Change Conversion Notice” has the meaning set forth in Section 2.6(b).

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          “Fundamental Change Conversion Period” has the meaning set forth in Section 2.6(a).
          “Fundamental Change Conversion Rate” means the conversion rate set forth in the table below for the applicable Effective Date of a Fundamental Change and the applicable ADS Price:
                                                                                                                         
                                                            ADS Price                            
Effective Date   $20.00   $25.00   $30.00   $35.00   $40.00   $43.50   $50.00   $55.00   $60.00   $65.00   $75.00   $85.00   $100.00   $125.00   $150.00
Sept. 22, 2010
     1.02503       1.01256       0.99392       0.97460       0.95722       0.94675       0.93116       0.92225       0.91556       0.91064       0.90462       0.90184       0.90072       0.90174       0.90335  
Sept. 15, 2011
     1.07552       1.06304       1.04133       1.01642       0.99242       0.97738       0.95442       0.94109       0.93103       0.92363       0.91459       0.91031       0.90815       0.90829       0.90923  
Sept. 15, 2012.
     1.11979       1.11510       1.09804       1.07059       1.03821       1.01571       0.97936       0.95807       0.94252       0.93176       0.92007       0.91558       0.91389       0.91408       0.91457  
Sept. 15, 2013
     1.14941       1.14941       1.14941       1.14941       1.14941       1.14941       1.00000       0.91952       0.91952       0.91952       0.91952       0.91952       0.91952       0.91952       0.91952  
          The ADS Prices set forth in the column headers will be adjusted as of any date on which the Fixed Conversion Rates of the Bonds are adjusted. The adjusted ADS Prices will equal the ADS Prices applicable immediately prior to such adjustment multiplied by a fraction, the numerator of which is the Minimum Conversion Rate immediately prior to the adjustment giving rise to the ADS Price adjustment and the denominator of which is the Minimum Conversion Rate as so adjusted. Each of the conversion rates in the table will be subject to adjustment in the same manner and at the same time as each Fixed Conversion Rate as set forth in Section 3 hereof.
          The exact ADS Price and Effective Date of the Fundamental Change may not be set forth on the table, in which case:
     (a) if the ADS Price is between two ADS Prices on the table or the Effective Date is between two Effective Dates on the table, the Fundamental Change Conversion Rate will be determined by straight-line interpolation between the Fundamental Change Conversion Rates set forth for the higher and lower ADS Prices and the earlier and later Effective Dates, as applicable, based on a 365-day year;
     (b) if the ADS Price is in excess of US$150.00 per share (subject to adjustment in the same manner and at the same time as the ADS Prices in the table above), then the Fundamental Change Conversion Rate will be the Minimum Conversion Rate, subject to adjustment as set forth in Section 3 hereof; and
     (c) if the ADS Price is less than US$20.00 per share (subject to adjustment in the same manner and at the same time as the ADS Prices in the table above), then the Fundamental Change Conversion Rate will be the Maximum Conversion Rate, subject to adjustment as set forth in Section 3 hereof.
          “Guarantee” means the unconditional guarantee by the Guarantor of the Bonds pursuant to Article 16 of the Base Indenture, as modified by Section 6.6 of this Supplemental Indenture.
          “Guarantor Indebtedness” means all Indebtedness of the Guarantor, except (i) any Indebtedness which is by its terms pari passu with the Bonds; (ii) Indebtedness owed to a Subsidiary or Affiliate of the Guarantor; and (iii) guarantees by the Guarantor in respect of share capital issued by Subsidiaries of the Guarantor. Guarantor Indebtedness does not include shares

6

 

of the Guarantor’s capital stock or warrants, options or rights to acquire shares of the Guarantor’s capital stock.
          “Guarantor Proceeding” has the meaning set forth in Section 9.2(b).
          “Indebtedness” means, with respect to any Person, whether recourse is to all or a portion of the assets of such Person and whether or not contingent, (i) every obligation of such Person for money borrowed; (ii) every obligation of such Person evidenced by bonds, debentures, notes or other similar instruments, including obligations incurred in connection with the acquisition of property, assets or business; (iii) every reimbursement obligation of such Person with respect to letters of credit, bankers’ acceptances or similar facilities issued for the account of such Person; (iv) every obligation of such Person issued or assumed as the deferred purchase price of property or services (but excluding trade accounts payable or accrued liabilities arising in the ordinary course of business); (v) every capital lease obligation of such Person; (vi) all indebtedness of such Person for claims in respect of derivative products, including without limitation, interest rate and foreign exchange contracts, forward commodity contracts (whether related to mortgages, securities, commodities or otherwise), options and swaps and similar arrangements; (vii) every obligation of the type referred to in clauses (i) through (vi) of another Person for the payment of which such Person has guaranteed or is responsible or liable for, directly or indirectly, as obligor, guarantor or otherwise; and (viii) any renewals, extensions, refundings, amendments or modifications of any of the obligations described in clauses (i) through (vii).
          “Initial Price” means US$50.00 divided by the Maximum Conversion Rate, which shall, for purposes of determining which clauses of Section 2.3(b) will apply, be rounded to the nearest 1/10th of one cent (US$43.500).
          “Interest Payment Date” has the meaning set forth in Section 2.1 hereof.
          “junior securities” has the meaning set forth in Section 9.10.
          “Junior Subordinated Payment” has the meaning set forth in Section 9.1(b).
          “last reported sale price” has the meaning set forth in Section 4.1(e).
          “Maximum Conversion Rate” means 0.91954, subject to adjustment as provided in Section 3.
          “Market Disruption Event” means (i) a failure by the primary United States national or regional securities exchange or other market on which the ADSs are listed or admitted to trading to open for trading during its regular trading session or (ii) the occurrence or existence prior to 1:00 p.m., New York City time, on any Trading Day for the ADSs for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the relevant securities exchange or otherwise) in the ADSs or in any options, contracts or futures contracts relating to the ADSs.
          

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          “Maturity” or “Maturity Date” means the date on which the principal of the Bonds becomes due and payable as provided herein, whether on the Stated Maturity Date or by declaration of acceleration.
          “merger common stock” has the meaning set forth in Section 4.1(d).
          “merger valuation percentage” has the meaning set forth in Section 4.1(e).
          “merger valuation period” has the meaning set forth in Section 4.1(e).
          “Minimum Conversion Rate” means 1.14943, subject to adjustment as provided in Section 3.
          “Newco Scheme” means a scheme of arrangement which effects the interposition of a limited liability company (“Newco”) between the shareholders of the Guarantor immediately prior to the scheme of arrangement (the “Existing Shareholders”) and the Guarantor; provided that immediately after completion of the scheme of arrangement the only shareholders of Newco are the Existing Shareholders (or where depositary or other receipts or certificates representing ordinary shares of Newco are issued to the Existing Shareholders, the only holders of such depositary or other receipts or certificates are the Existing Shareholders) and that all Subsidiaries of the Guarantor immediately prior to the scheme of arrangement (other than Newco, if Newco is then a Subsidiary of the Guarantor) are Subsidiaries of the Guarantor (or of Newco) immediately after the scheme of arrangement.
          “NYSE” means the New York Stock Exchange, Inc.
          “Observation Period” means the twenty consecutive Trading Day period beginning on, and including, the 25th Scheduled Trading Day immediately preceding September 15, 2013.
          “open of business” has the meaning set forth in Section 3.2(c).
          “Optional Conversion Commencement Date” means the earlier of (i) 90 calendar days following the first original issuance date of the Bonds and (ii) the Approval Date.
          “Optional Conversion Date” has the meaning set forth in Section 2.8(c).
          “Optional Early Conversion” has the meaning set forth in Section 2.4(a).
          “Regular Record Date” with respect to any Interest Payment Date means the March 1, June 1, September 1 or December 1 immediately preceding the applicable Interest Payment Date, respectively.
          “reorganization event” has the meaning set forth in Section 4.1(a).
          “Reserved Shares” means, upon the Shareholder Conversion Approval, the ordinary shares of the Guarantor reserved for the purposes of satisfying the Guarantor’s or the Company’s obligations to deliver ADSs upon the conversion of the Bonds (subject to increase if

8

 

the Guarantor receives shareholder approval to issue additional ordinary shares for purposes of satisfying the Guarantor’s or the Company’s obligation to deliver ADSs upon conversion of the Bonds and subject to adjustments for stock splits and other corporate events to the extent provided for in the applicable shareholder approval or applicable law).
          “Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the primary United States national or regional securities exchange or other market on which the ADSs are listed or admitted for trading. If the ADSs are not so listed or admitted for trading, Scheduled Trading Day means a Business Day.
          “Shareholder Conversion Approval” means the approval by the Guarantor’s shareholders in a general meeting of the issue of ordinary shares underlying the ADSs issuable by the Guarantor or the Company upon an exercise of conversion rights under the Bonds and the placing of a sufficient number of the Guarantor’s ordinary shares under control of the directors of the Guarantor as a specific authority for that purpose.
          “spin-off” has the meaning set forth in Section 3.1(c).
          “Stated Interest Rate” has the meaning set forth in Section 2.1(b).
          “Stated Maturity Date” means September 15, 2013, provided, however, that if a Market Disruption Event occurs during the twenty consecutive Scheduled Trading Day period (such period subject to extension by a number of Scheduled Trading Days during such period, as extended, on which a Market Disruption Event occurs) beginning on, and including, the 25th Scheduled Trading Day immediately preceding September 15, 2013, the Stated Maturity Date shall be postponed by the number of Scheduled Trading Days during such period on which a Market Disruption Event occurred.
          “Threshold Appreciation Price” means US$50.00 divided by the Minimum Conversion Rate which shall, for purposes of determining which clauses of Section 2.3(b) will apply, be rounded to the nearest 1/10th of one cent (US$54.375)
          “Trading Day” means a day on which (i) there is no Market Disruption Event and (ii) trading in ADSs generally occurs on the NYSE or, if the ADSs are not then listed on the NYSE, on the primary other United States national or regional securities exchange on which the ADSs are then listed or, if the ADSs are not then listed on a United States national or regional securities exchange, on the primary other market on which the ADSs are then listed or admitted for trading. If the ADSs (or other security for which a Daily VWAP must be determined) are not so listed or admitted for trading, Trading Day means a Business Day.
          “Treasury Yield” means the weekly average yield at the time of computation for United States Treasury securities at constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to the relevant conversion date (or, if such Statistical Release is no longer published, any publicly available source for similar market data)) most nearly equal to the then-remaining term to September 15, 2013; provided, however, that if the then-remaining term to September 15, 2013 is not equal to the constant maturity of a United States Treasury security

9

 

for which a weekly average yield is given, the Treasury Yield will be obtained by linear interpolation between the next longest and next shortest constant maturities.
          “true-up cash amount” has the meaning set forth in Section 5.2(a).
          “unit of exchange property” has the meaning set forth in Section 4.1(a).
          “valuation period” has the meaning set forth in Section 3.1(c).
2. General Terms And Conditions of The Bonds
     2.1 Designation.
          (a) There is hereby authorized and established a new series of Securities designated the “6.00% Mandatory Convertible Subordinated Bonds due 2013.” The Bonds will initially be limited to an aggregate principal amount of US$789,086,750 (which amount does not include Bonds authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Bonds pursuant to Sections 304, 305, 306 and 1305 of the Base Indenture).
          (b) The principal of the Bonds shall be due and payable as described in Section 2.7 on the Stated Maturity Date. The Bonds shall be unsecured and shall bear interest at the rate of 6.00% per annum (the “Stated Interest Rate”), from September 22, 2010 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, as the case may be, payable quarterly on March 15, June 15, September 15 and December 15, commencing December 15, 2010, until converted as provided herein, and at Maturity (each, an “Interest Payment Date”). The Bonds shall be initially issued in the form of a global Bond (“Global Bond”) pursuant to Section 203 of the Base Indenture and the Depositary for the Bonds shall be The Depository Trust Company, New York, New York (“DTC”).
          (c) The Bonds shall not be redeemable or terminable prior to their Stated Maturity Date (except that they may be converted at the Company’s option as provided in Section 2.5) and shall not be subject to any sinking fund.
          (d) The Bonds shall be mandatorily convertible on the Stated Maturity Date as provided in Section 2.3.
          (e) The Bonds shall be issuable in registered form without coupons in a minimum denomination of US$50.00 and integral multiples thereof.
          (f) The Company shall not be obligated to pay any additional amount on the Bonds in respect of taxes, except as otherwise provided in 6.2 hereof and in Section 1005 of the Base Indenture.
          (g) The form of Bond attached hereto as Exhibit A is hereby adopted as a form of Securities of a series that consists of the Bonds.

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     2.2 Payments of Interest, Interest Deferral Right.
          (a) Payments of Interest. Each Bond shall be dated the date of its authentication and shall bear interest from the date specified on the face of the form of such Bond attached as Exhibit A hereto. Interest on the Bonds shall be computed on the basis of a 360-day year comprised of twelve 30-day months. The Person in whose name any Bond is registered on the Security Register at the close of business on any Regular Record Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date; provided that interest that is deferred pursuant to Sections 2.2(b), 2.2(c) and 2.2(d) hereof shall be payable as provided therein. The Place of Payment for interest shall be the office of the Company maintained by the Company for such purposes in the Borough of Manhattan, City of New York, which shall initially be the Corporate Trust Office of the Trustee. The Company shall pay interest (i) on any Bonds in certificated form by check mailed to the address of the Person entitled thereto as it appears in the Bond register (or upon appropriate written application by such Person to the Trustee or other Paying Agent not later than 15 Business Days prior to the Interest Payment Date, by wire transfer in immediately available funds to such Person’s account in New York, if such Person is entitled to interest on an aggregate principal in excess of US$10,000,000) or (ii) on any Global Bond by wire transfer of immediately available funds to the account of DTC or its nominee. If any Interest Payment Date falls on a day that is not a Business Day, payment of any amount otherwise payable on that date will be made on the first following day that is a Business Day with the same force and effect as if made on the date it would otherwise have been payable. No additional interest will accrue as a result of such delayed payment.
          (b) Interest Deferral Option. The Company may at its sole discretion elect to defer any interest to be paid on any of the Interest Payment Dates, and may extend any period in which any interest payment has been so deferred (a “Deferral Period”) at any time or from time to time and such deferral shall not constitute a Default or Event of Default with respect to the Bonds, provided that (i) the Company is not then in default in payment of interest at the time deferral is elected, (ii) notice is given as provided in Section 2.2(c) below, (iii) Deferral Periods shall end no later than September 15, 2013, and (iv) any Deferral Period shall end on an Interest Payment Date. During any Deferral Period, interest shall continue to accrue, and at the end of a Deferral Period the Company shall pay all Deferred Interest then accrued and unpaid, together with interest on the accrued and unpaid interest, to the extent permitted by applicable law, at a rate equal to the Stated Interest Rate calculated on the basis of a 360-day year of twelve 30-day months. Such payment will be made to such Holders and at such times as non-Deferred Interest on the Bond would be payable on the Interest Payment Date on which the Deferral Period ends. Upon the termination of any Deferral Period and the payment of all amounts then due, the Company may elect to begin a new Deferral Period, subject to the limitations set forth above.
          (c) Interest Deferral Notice. To initiate or extend a Deferral Period the Company shall give the Trustee and the Holders of Bonds written notice of its election to begin or extend a Deferral Period at least 20 calendar days prior to the Interest Payment Date on which such interest would otherwise be payable, and the notice shall indicate the Interest Payment Date on which the Deferral Period is expected to end. Subject to the limitations of Section 2.2(b), prior to the termination of any Deferral Period, the Company may elect to extend such deferral period to a later Interest Payment Date of the Bonds.

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          (d) Interest Deferral Payment Restrictions. During any Deferral Period, subject to the exceptions set forth below, none of the Company, the Guarantor, or any Subsidiary of the Guarantor shall declare or pay any dividend on, make any distributions relating to, or redeem, purchase, acquire or make a liquidation payment relating to, any of the Company’s or the Guarantor’s capital stock or make any guarantee payment with respect thereto. In addition, during any such deferral period, none of the Company, the Guarantor or any Subsidiary of the Guarantor shall make any payment of interest, principal or premium on, or repay, purchase or redeem, any debt securities or guarantees issued by the Company or the Guarantor that rank equally with or junior to the Bonds, or the guarantee thereof by the Guarantor, as the case may be, other than pro rata payments of accrued and unpaid interest on the Bonds and any other debt securities or guarantees issued by the Company or the Guarantor, as the case may be, that rank equally with the Bonds or the guarantee thereof, as applicable (except and to the extent the terms of any such debt securities or guarantees would prohibit the Company, the Guarantor or any Subsidiary of the Guarantor from making such pro rata payment or making payment at all thereunder).
          The restrictions described above shall not apply to:
     (i) any purchase, redemption or other acquisition of shares or capital stock of the Company or the Guarantor in connection with (1) any employment contract, benefit plan, or other similar arrangement with or for the benefit of any one or more employees, officers, directors, consultants or independent contractors, (2) a dividend reinvestment or shareholder purchase plan, or (3) the issuance of shares or capital stock, or securities convertible into or exercisable for such shares or capital stock, as consideration in an acquisition transaction entered into prior to the applicable Deferral Period;
     (ii) any exchange, redemption, or conversion of any class or series of the Guarantor’s share capital, or the capital stock of a Subsidiary of the Guarantor, for any other class or series of the Guarantor’s share capital, or of any class or series of indebtedness of the Guarantor or any Subsidiary of the Guarantor for any class or series of the Guarantor’s share capital;
     (iii) any purchase of fractional interests in shares of the Guarantor’s share capital pursuant to the conversion or exchange provisions of such share capital or the securities being converted or exchanged;
     (iv) any declaration of a dividend in connection with any shareholder rights plan, or the issuance of rights, shares or other property under any shareholder rights plan, or the redemption or purchase of rights pursuant thereto;
     (v) any dividend in the form of shares, warrants, options or other rights where the dividend or shares issuable upon exercise of such warrants, options or other rights is the same shares as that on which the dividend is being paid or ranks equally with or junior to such shares; and
     (vi) any intra-group payments, by way of dividends or otherwise, made by the Guarantor’s Subsidiaries to the Guarantor or the Guarantor to one of its Subsidiaries.

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     2.3 Mandatory Conversion.
          (a) Each Bond shall automatically convert (unless previously converted at the option of the Holder in accordance with Section 2.4 hereof, at the option of the Company in accordance with Section 2.5 hereof, upon the occurrence of a Fundamental Change in accordance with Section 2.6 hereof, or upon the acceleration of the maturity of the Bonds in accordance with Section 7.2 hereof) on the Stated Maturity Date into a number of ADSs determined as provided in Section 2.3(b), subject to automatic cash settlement pursuant to Section 5.1 hereof and cash true-up pursuant to Section 5.2 hereof. In addition to the ADSs issuable upon conversion of each Bond on the Stated Maturity Date, Holders of Bonds will have the right to receive on the Stated Maturity Date an amount in cash equal to all accrued and unpaid interest on the Bonds (including Deferred Interest) to, but excluding, September 15, 2013.
          (b) The number of ADSs into which a Bond shall convert on the Stated Maturity Date shall be the sum of the Daily Conversion Amounts determined for each Trading Day of the Observation Period as follows:
     (i) if the Daily VWAP of the ADSs on such Trading Day is equal to or greater than the Threshold Appreciation Price, then the Daily Conversion Amount per Bond shall be equal to 1/20th of the Minimum Conversion Rate;
     (ii) if the Daily VWAP of the ADSs on such Trading Day is less than the Threshold Appreciation Price but greater than the Initial Price, then the Daily Conversion Amount per Bond shall be equal to US$2.50 divided by the Daily VWAP of the ADSs on such Trading Day; and
     (iii) if the Daily VWAP of the ADSs on such Trading Day is less than or equal to the Initial Price, then the Daily Conversion Amount per Bond shall be equal to 1/20th of the Maximum Conversion Rate.
All such calculations shall be made to the nearest 1/100,000th of an ADS or, if there is not a nearest 1/100,000th of an ADS, to the next higher 1/100,000th of an ADS.
     2.4 Early Conversion at the Option of the Holder.
          (a) Holders of the Bonds shall have the right to convert their Bonds, in whole or in part, at any time from the Optional Conversion Commencement Date until the 25th Scheduled Trading Day immediately preceding September 15, 2013 at the Minimum Conversion Rate (“Optional Early Conversion”), subject to adjustment as described under Section 3 hereof and to the automatic cash settlement provisions set forth in Section 5.1 hereof and the cash true-up provisions set forth in Section 5.2 hereof.
          (b) Upon Optional Early Conversion, a Holder will not receive any separate cash payment for accrued and unpaid interest, except as set forth below. In addition to the number of ADSs issuable upon conversion, a Holder who elects to convert Bonds early pursuant to Section 2.4(a) shall have the right to receive an amount equal to any Deferred Interest to, but excluding, the Interest Payment Date preceding the date of conversion. The Company’s settlement of its obligation to convert the Bonds into ADSs upon Optional Early Conversion in

13

 

accordance with this Section 2.4 shall be deemed to satisfy its obligation to pay the principal amount of the Bonds that are converted and accrued and unpaid interest, if any, from the Interest Payment Date preceding the date of conversion in respect of such Bonds. As a result, accrued and unpaid interest from the Interest Payment Date preceding the date of conversion to, but excluding, the date of conversion shall be deemed to be paid in full rather than canceled, extinguished or forfeited.
     Notwithstanding the preceding sentence, if Bonds are converted pursuant to Section 2.4(a) after the close of business on a Regular Record Date but prior to the open of business on the corresponding Interest Payment Date, Holders of such Bonds as of the close of business on such Regular Record Date will receive payment of interest (including Deferred Interest, to the extent such Interest Payment Date is also the end of a Deferral Period) accrued to, but excluding, such Interest Payment Date. Bonds surrendered for Optional Early Conversion during the period from the close of business on a Regular Record Date to the open of business on the corresponding Interest Payment Date must be accompanied by payment of an amount equal to the interest (including Deferred Interest, if applicable) payable on the converted Bonds on such Interest Payment Date.
     Except as provided above, no payment or adjustment will be made for accrued but unpaid interest from the Interest Payment Date preceding the date of conversion to, but excluding, the date of conversion on Bonds that are the subject of an Optional Early Conversion.
     2.5 Early Conversion at the Company’s Option.
          (a) The Company shall have the right to convert the Bonds at its option, in whole but not in part, at any time after the Approval Date and on or before the 25th Scheduled Trading Day immediately preceding September 15, 2013 upon not less than 20 Scheduled Trading Days’ nor more than 30 Scheduled Trading Days’ prior written notice (the “Mandatory Early Conversion Notice”) to the Holders of the Bonds (“Mandatory Early Conversion”).
          (b) On the conversion date (the “Mandatory Early Conversion Date”) specified in the Mandatory Early Conversion Notice, a Holder of Bonds shall receive (i) a number of ADSs per Bond equal to the Maximum Conversion Rate, subject to the cash true-up provisions set forth in Section 5.2 hereof; (ii) an amount payable in cash equal to any accrued and unpaid interest (including Deferred Interest) on the Bonds to, but excluding, the Mandatory Early Conversion Date; and (iii) an amount payable in cash equal to the present value of all remaining interest payments on the Bonds, including the interest payment due on September 15, 2013 (but excluding any accrued and unpaid interest to the Mandatory Early Conversion Date), computed using a discount rate equal to the Treasury Yield plus 50 basis points.
     2.6 Conversion Upon Fundamental Change.
          (a) If a Fundamental Change occurs at any time after the initial issuance of the Bonds up to, and including, the 25th Scheduled Trading Day immediately preceding September 15, 2013, then, regardless whether Shareholder Conversion Approval has been obtained, but subject to the automatic cash settlement provisions set forth in Section 5.1 hereof and the cash true-up provisions set forth in Section 5.2 hereof, Holders of the Bonds shall be permitted to convert their Bonds, in whole or in part (“Fundamental Change Conversion”), at
          

14

 

any time during the period beginning on, and including, the Effective Date of such Fundamental Change and ending on, but excluding, the earlier of (i) September 15, 2013 and (ii) the date that is 20 Business Days after the Effective Date of such Fundamental Change (the “Fundamental Change Conversion Period”) at the Fundamental Change Conversion Rate, plus an amount payable in cash equal to accrued and unpaid interest (including Deferred Interest) to, but excluding, the date of such conversion, plus an amount payable in cash equal to the present value of all remaining interest payments on the Bonds, including the interest payment due on September 15, 2013 (but excluding any accrued and unpaid interest to the date of conversion), computed using a discount rate equal to the Treasury Yield plus 50 basis points.
          (b) At such time as the Company is reasonably able to anticipate the Effective Date of the Fundamental Change (such date, as set forth in such notice, the “Anticipated Effective Date”), the Company shall send a written notice (the “Fundamental Change Conversion Notice”) to the Trustee and the Holders of the Bonds, of the Anticipated Effective Date and the corresponding Fundamental Change Conversion Period. To the extent practicable, the Company will provide the Fundamental Change Conversion Notice at least 20 days prior to the Anticipated Effective Date, but in any event will provide such notice not later than two Business Days following the Company’s becoming aware of the occurrence of a Fundamental Change.
     2.7 Conversion Procedures for Mandatory Conversion.
          The Holder or Holders entitled to receive the ADSs issuable upon mandatory conversion on the Stated Maturity Date in accordance with Section 2.3, upon conversion at the Company’s option in accordance with Section 2.5, or upon acceleration of the Bonds in accordance with Section 7.2, shall be treated for all purposes as the record holder(s) of such ADSs as of 5:00 p.m., New York City time, on the last Trading Day of the Observation Period, in the case of conversion pursuant to Section 2.3, the Mandatory Early Conversion Date, in the case of conversion pursuant to Section 2.5, or the date of acceleration, in the case of conversion pursuant to Section 7.2. Prior to such time, the ADSs issuable upon conversion of the Bonds (and the ordinary shares underlying such ADSs) shall not be deemed outstanding for any purpose, and Holders shall have no rights with respect to the ADSs or underlying ordinary shares (including voting rights, rights to respond to tender offers and rights to receive dividends or other distributions) by virtue of holding Bonds. The ADSs shall be delivered as promptly as practicable after the last Trading Day of the Observation Period, the Mandatory Early Conversion Date or the date of acceleration, as applicable.
          2.8 Conversion Procedures for Optional Conversion.
          (a) If a holder who holds a beneficial interest in a Global Bond elects to convert its Bonds prior to the Stated Maturity Date in accordance with Section 2.4 or Section 2.6, such holder must observe the following conversion procedures to convert the Bonds:
     (i) deliver to DTC the appropriate instruction form for conversion pursuant to DTC’s conversion program;
     (ii) if required, pay all taxes or duties, if any, pursuant to Section 6.3; and

15

 

     (iii) if Optional Early Conversion is being effected after the close of business on a Regular Record Date but prior to the open of business on the related Interest Payment Date, include a cash or check in the amount equal to the interest (including Deferred Interest) required to be paid pursuant to Section 2.4(b).
          (b) If a Holder who holds Bonds in certificated form elects to convert its Bonds prior to the Stated Maturity Date in accordance with Section 2.4 or Section 2.6, such Holder must observe the following conversion procedures to convert the Bonds:
     (i) complete and manually sign an “Optional Early Conversion Notice” substantially in the form of Exhibit B hereto;
     (ii) deliver the completed “Optional Early Conversion Notice” and the certificated Bonds to the Conversion Agent;
     (iii) if required, furnish appropriate endorsements and transfer documents; and
     (iv) if required, pay all transfer or similar taxes or duties, if any, pursuant to Section 6.3; and
     (v) if Optional Early Conversion is being effected after the close of business on a Regular Record Date but prior to the open of business on the related Interest Payment Date, include a check in the amount equal to the interest (including Deferred Interest) required to be paid pursuant to Section 2.4(b).
          (c) The conversion will be effective on the date on which a Holder has satisfied all of the foregoing requirements (the “Optional Conversion Date”).
          (d) The Holder or Holders entitled to receive the ADSs issuable upon Optional Early Conversion or in connection with a Fundamental Change Conversion shall be treated for all purposes as the record holder(s) of such ADSs as of 5:00 p.m., New York City time, on the Optional Conversion Date. Prior to such Optional Conversion Date, ADSs issuable upon conversion of any Bonds (and ordinary shares underlying such ADSs) shall not be deemed outstanding for any purpose, and Holders shall have no rights with respect to the ADSs or underlying ordinary shares (including voting rights, rights to respond to tender offers and rights to receive dividends or other distributions) by virtue of holding Bonds. The ADSs shall be delivered as promptly as practicable after the Optional Conversion Date.
          2.9 No Fractional ADSs.
          If more than one Bond shall be surrendered for conversion at one time by the same Holder, the number of full ADSs which shall be delivered upon such conversion, in whole or in part, as the case may be, shall be computed on the basis of the aggregate number of Bonds surrendered. No fractional ADSs shall be issued or delivered upon any conversion of any Bonds. In lieu of any fractional ADSs which, but for the immediately preceding sentence, would otherwise be deliverable upon such conversion, the Holder shall be entitled to receive an amount of cash (computed to the nearest cent) equal to the same fraction of:

16

 

          (a) in the case of a Fundamental Change Conversion, the ADS Price,
          (b) in the case of mandatory conversion on the Stated Maturity Date, the Daily VWAP of an ADS on the last Trading Day of the Observation Period; or
          (c) in the case of any other conversion, the average of the Daily VWAP of an ADS on each of the five consecutive Trading Days ending on, and including, the Trading Day immediately preceding the date of conversion.
The Company shall, upon such conversion of any Bonds, provide cash to any applicable Paying Agent in an amount equal to the cash payable with respect to any fractional ADSs deliverable upon such conversion, and the Company shall retain such fractional ADSs or other securities.
3. Conversion Rate Adjustments
     3.1 Conversion Rate Adjustments.
          Each Fixed Conversion Rate shall be adjusted as provided below, except that no adjustment shall be made to the Fixed Conversion Rates if Holders of the Bonds participate, as a result of holding the Bonds, in any of the transactions described in Section 3.1(a) (but only with respect to an issue by the Guarantor of ordinary shares either as a dividend or as a distribution on its ordinary shares), Section 3.1(b), Section 3.1(c) and Section 3.1(d) below at the same time as holders of ordinary shares of the Guarantor without having to convert their Bonds as if they held a number of ADSs equal to the Maximum Conversion Rate in effect prior to the relevant ex-dividend date or effective date:
          (a) If the Guarantor issues ordinary shares as a dividend or distribution on its ordinary shares, or if the Guarantor effects a share split or share combination, each Fixed Conversion Rate will be adjusted based on the following formula:
(GRAPHIC)
where,
     
CR0 =
  the Fixed Conversion Rate in effect immediately prior to the open of business on the ex-dividend date of such dividend or distribution, or immediately prior to the open of business on the effective date of such share split or combination, as applicable;
 
    
CR1 =
  the Fixed Conversion Rate in effect immediately after the open of business on such ex-dividend date or effective date;
 
    
OS0 =
  the number of the Guarantor’s ordinary shares outstanding immediately prior to the open of business on such ex-dividend date or such effective date;
 
    
OS1 =
  the number of the Guarantor’s ordinary shares outstanding immediately after giving effect to such dividend, distribution, share split or share combination;

17

 

     
ADS0=
  the number of ordinary shares of the Guarantor represented by an ADS immediately prior to the open of business on the ex-dividend date of such dividend or distribution, or immediately prior to the open of business on the effective date of such share split or combination, as applicable; and
 
    
ADS1=
  the number of ordinary shares of the Guarantor represented by an ADS immediately after giving effect to such dividend, distribution, share split or share combination.
          Any adjustment made under this Section 3.1(a) shall become effective immediately after the open of business on the ex-dividend date for such dividend or distribution, or immediately after the open of business on the effective date for such share split or share combination, as applicable. If any dividend or distribution of the type described in this Section 3.1(a) is declared but not so paid or made, each Fixed Conversion Rate shall be immediately readjusted, effective as of the date the Guarantor’s Board of Directors determines not to pay such dividend or distribution, to the applicable Fixed Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
          (b) If the Guarantor issues to all or substantially all holders of its ordinary shares any rights, options or warrants entitling them for a period of not more than 60 calendar days after the announcement date of such issuance to subscribe for or purchase ordinary shares of the Guarantor at a price per share less than the current market price of the Guarantor’s ordinary shares on the date of the first public announcement of the terms of such issuance, each Fixed Conversion Rate will be increased based on the following formula:
(GRAPHIC)
where,
     
CR0 =
  the Fixed Conversion Rate in effect immediately prior to the open of business on the ex-dividend date for such issuance;
 
    
CR1 =
  the Fixed Conversion Rate in effect immediately after the open of business on such ex-dividend date;
 
    
OS0 =
  the number of the Guarantor’s ordinary shares outstanding immediately prior to the open of business on such ex-dividend date;
 
    
X =
  the total number of the Guarantor’s ordinary shares issuable pursuant to such rights, options or warrants; and
 
    
Y =
  the number of the Guarantor’s ordinary shares equal to the aggregate price payable to exercise such rights, options or warrants divided by the current market price of the Guarantor’s ordinary shares on the date of the first public announcement of the terms of issuance of such rights, options or warrants.
          Any increase made under this Section 3.1(b) will be made successively whenever such rights, options or warrants are issued and shall become effective immediately after the open

18

 

of business on the ex-dividend date for such issuance. To the extent that the Guarantor’s ordinary shares are not delivered after the expiration of such rights, options or warrants, each Fixed Conversion Rate shall be decreased to the applicable Fixed Conversion Rate that would then be in effect had the increase with respect to such rights, options or warrants been made on the basis of delivery of only the number of the Guarantor’s ordinary shares actually delivered. If such rights, options or warrants are not so issued, each Fixed Conversion Rate shall be decreased to the applicable Fixed Conversion Rate that would then be in effect if such ex-dividend date for such issuance had not occurred.
          In determining whether any rights options or warrants entitle the holders to subscribe for or purchase the Guarantor’s ordinary shares at less than the current market price of the Guarantor’s ordinary shares on the date of the first public announcement of the terms of such issuance, and in determining the aggregate offering price of such ordinary shares, there shall be taken into account any consideration received by the Guarantor for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Guarantor’s Board of Directors.
          (c) If the Guarantor distributes shares in its share capital, evidences of its indebtedness, other assets or property of the Guarantor or rights or warrants to acquire the Guarantor’s shares in its share capital or other securities to all or substantially all holders of its ordinary shares, excluding (i) dividends or distributions and rights, options or warrants as to which an adjustment was effected pursuant to Section 3.1(a) or 3.1(b) above; (ii) dividends or distributions paid exclusively in cash as to which an adjustment was effected pursuant to Section 3.1(d) below; and (iii) spin-offs to which the provisions set forth below in this Section 3.1(c) shall apply; then each Fixed Conversion Rate will be increased based on the following formula:
(GRAPHIC)
where,
     
CR0 =
  the Fixed Conversion Rate in effect immediately prior to the open of business on the ex-dividend date for such distribution;
 
    
CR1 =
  the Fixed Conversion Rate in effect immediately after the open of business on such ex-dividend date;
 
    
SP0 =
  the current market price of the Guarantor’s ordinary shares on the ex-dividend date for such distribution; and
 
    
FMV =
  the fair market value (as determined by the Guarantor’s Board of Directors) of the shares of capital stock, evidences of indebtedness, assets, property, rights, options or warrants distributed with respect to each outstanding ordinary share of the Guarantor on the ex-dividend date for such distribution.
          If the then fair market value of the portion of the shares in the Guarantor’s share capital, evidences of indebtedness or other assets or property so distributed applicable to one

19

 

ordinary share is equal to or greater than the current market price of the Guarantor’s ordinary shares on the ex-dividend date for such distribution, in lieu of the foregoing adjustment, each Holder of a Bond shall receive, at the same time and upon the same terms as holders of the Guarantor’s ordinary shares, the amount and kind of securities and assets such Holder would have received as if such Holder owned a number of ordinary shares underlying a number of ADSs equal to the Maximum Conversion Rate in effect on the record date for the distribution of the securities or assets.
          Any increase made under the portion of this Section 3.1(c) above will become effective immediately after the open of business on the ex-dividend date for such distribution. If such distribution is not so paid or made, each Fixed Conversion Rate shall be decreased to the applicable Fixed Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
          With respect to an adjustment pursuant to this Section 3.1(c) where there has been a payment of a dividend or other distribution on the Guarantor’s ordinary shares of shares in its share capital of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Guarantor and such dividend or distribution is listed for trading on a United States national securities exchange (a “spin-off”), then each Fixed Conversion Rate will be increased based on the following formula:
(GRAPHIC)
where,
     
CR0 =
  the Fixed Conversion Rate in effect immediately prior to the end of the valuation period (as defined below);
 
    
CR1 =
  the Fixed Conversion Rate in effect immediately after the end of the valuation period;
 
    
FMV0 =
  the average of the Daily VWAP of the share capital or similar equity interest distributed to holders of the Guarantor’s ordinary shares applicable to one ordinary share over the first 10 consecutive Trading Day period after, and including, the ex-dividend date of the spin-off (the “valuation period”); and
 
    
MP0 =
  the average of the Daily VWAP of the Guarantor’s ADSs (divided by the number of ordinary shares represented by an ADS) over the valuation period.
          The adjustment to each Fixed Conversion Rate under the preceding paragraph will occur as of the close of business on the last Trading Day of the valuation period; provided that in respect of any conversion during the valuation period, references above to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the ex-dividend date for such spin-off and the date of conversion in determining the applicable Fixed Conversion Rate.

20

 

          (d) If the Guarantor pays any cash dividend or distribution made to all or substantially all holders of its ordinary shares during any annual period commencing on September 15 that, when added to all other cash dividends or distributions to holders of ordinary shares made in such annual period, exceeds the Dividend Threshold Amount (as defined below), each Fixed Conversion Rate will be increased based on the following formula:
(GRAPHIC)
where,
     
CR0 =
  the Fixed Conversion Rate in effect immediately prior to the open of business on the ex-dividend date for such dividend or distribution;
 
    
CR1 =
  the Fixed Conversion Rate in effect immediately after the open of business on the ex-dividend date for such dividend or distribution;
 
    
SP0 =
  the current market price of the Guarantor’s ordinary shares on the ex-dividend date for such dividend or distribution;
 
    
C =
  the aggregate amount of cash per share the Guarantor distributes to holders of its ordinary shares in the relevant annual period; provided that after the first adjustment made pursuant to this Section 3.1(d) in a particular annual period specified in the table below, the value of “C” for each subsequent adjustment pursuant to this Section 3.1(d) in the same annual period shall be the amount of the cash dividend or distribution causing such subsequent adjustment; and
 
    
T =
  the Dividend Threshold Amount; provided that after the first adjustment made pursuant to this Section 3.1(d) in a particular annual period specified in the table below, the value of “T” for each subsequent adjustment pursuant to this Section 3.1(d) in the same annual period shall be zero.
“Dividend Threshold Amount” means the amount specified in the table below for each annual period commencing September 15 of the specified calendar year:
         
    Dividend
Annual Period   Threshold
Commencing   Amount
September 15,   (US$)
2010
     0.23  
2011
     0.26  
2012
     0.29  
          The Dividend Threshold Amounts in the table above are subject to adjustment in a manner inversely proportional to adjustments to each of the Fixed Conversion Rates; provided that no adjustment will be made to the Dividend Threshold Amounts for any adjustment to the Fixed Conversion Rates under this Section 3.1(d).

21

 

          If the amount of cash per share the Guarantor distributes to holders of its ordinary shares in the relevant annual period is equal to or greater than the current market price of the Guarantor’s ordinary shares on the ex-dividend date for such distribution, in lieu of the foregoing adjustment, each Holder of a Bond shall receive, at the same time and upon the same terms as holders of the Guarantor’s ordinary shares, the amount of cash such Holder would have received as if such Holder owned a number of ordinary shares underlying a number of ADSs equal to the Maximum Conversion Rate in effect on the record date for the relevant dividend or distribution.
          Any increase made under this Section 3.1(d) shall become effective immediately after the open of business on the ex-dividend date for such dividend or distribution. If such dividend or distribution is not so paid, each Fixed Conversion Rate shall be decreased, effective as of the date the Guarantor’s Board of Directors determines not to make or pay such dividend or distribution, to the applicable Fixed Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
          (e) If the Guarantor or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for the Guarantor’s ordinary shares or ADSs and if and solely to the extent the cash and value of any other consideration included in the payment per share of the Guarantor’s ordinary shares or ADSs (divided, in the case of ADSs, by the number of the Guarantor’s ordinary shares represented by an ADS) exceeds the average of the daily VWAP of the Guarantor’s ADSs (divided, if applicable, by the number of Guarantor’s ordinary shares represented by an ADS) over the first consecutive 10 Trading Day period after, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (the “expiration date”), each Fixed Conversion Rate will be increased based on the following formula:
(GRAPHIC)
where,
     
CR0 =
  the Fixed Conversion Rate in effect immediately prior to the close of business on the 10th consecutive Trading Day immediately following, and including, the Trading Day next succeeding the expiration date;
 
    
CR1 =
  the Fixed Conversion Rate in effect immediately after the close of business on the 10th consecutive Trading Day immediately following, and including, the Trading Day next succeeding the expiration date;
 
    
AC =
  the aggregate value of all cash and any other consideration (as determined by the Guarantor’s Board of Directors) paid or payable for ordinary shares or ADSs purchased in such tender or exchange offer;
 
    
OS0 =
  the number of the Guarantor’s ordinary shares outstanding immediately prior to the expiration date;

22

 

     
OS1 =
  the number of the Guarantor’s ordinary shares outstanding immediately after the expiration date (after giving effect to the purchase of all shares accepted for purchase or exchange in such tender or exchange offer); and
 
    
SP1 =
  the average of the Daily VWAP of the Guarantor’s ADSs (divided by the number of ordinary shares represented by an ADS) over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the expiration date.
          The adjustment to each Fixed Conversion Rate under the preceding paragraph will occur at the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the expiration date; provided that in respect of any conversion within 10 Trading Days immediately following, and including, the expiration date, references to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between the expiration date and date of such conversion in determining the applicable Fixed Conversion Rate.
     3.2 Certain Terms.
          (a) As used in this Supplemental Indenture, “current market price” of an ordinary share of the Guarantor on any date means the average of the Daily VWAP of an ADS (divided by the number of ordinary shares represented by and ADS on the relevant Trading Day) for each of the five consecutive Trading Days ending on, and including, the Trading Day immediately preceding such date.
          (b) As used in this Supplemental Indenture, “ex-dividend date” means the first date on which the ADSs trade on the applicable exchange or in the applicable market regular way without the right to receive the issuance, dividend or distribution in question from the Guarantor or, if applicable, from the seller of the ADSs on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.
          (c) As used in this Supplemental Indenture, “open of business” or “close of business” mean the open or close of business in The City of New York.
     3.3 Application of Adjustments.
          (a) Whenever any provision of the Indenture requires the Company to calculate the current market price, the Daily VWAPs of the Guarantor’s ordinary shares or ADSs or the applicable Fixed Conversion Rate over a span of multiple days (including, but not limited to, the Daily Conversion Amounts for determining the number of ADSs due upon mandatory conversion on the Stated Maturity Date and the ADS Price for purposes of a Fundamental Change), the Guarantor’s Board of Directors will make appropriate adjustments to account for any adjustment to the Fixed Conversion Rates that becomes effective, or any event requiring an adjustment to the Fixed Conversion Rates where the ex-dividend date of the event occurs, at any time during the period when the current market price, the Daily VWAPs or the applicable Fixed Conversion Rate are to be calculated.
          (b) In the event of: (i) any subdivision or split of the outstanding ADSs, (ii) any distribution of additional ADSs to holders of ADSs, and (iii) any combination of the

23

 

outstanding ADSs into a smaller number of ADSs, the Company will adjust the Fixed Conversion Rates of the Bonds in effect immediately before the event triggering the adjustment so that the Holders of Bonds will be entitled to receive, upon conversion, the number of ADSs that they would have owned or been entitled to receive immediately following this event had the Bonds been exchanged for the corresponding ADS immediately before this event or any record date with respect to it.
          (c) If the Guarantor’s ordinary shares cease to be represented by American Depositary Receipts issued under a depositary receipt program sponsored by the Guarantor, or the ADSs cease to be listed on the NYSE (and are not at that time listed on another United States national securities exchange), all references in this Supplemental Indenture to the ADSs will be deemed to have been replaced by a reference to the number of the Guarantor’s ordinary shares represented by the ADSs on the last day on which the ADSs were traded on the NYSE (or another United States national securities exchange), as adjusted, pursuant to the adjustment provisions in this Section 3, for any other property the ADSs represented as if the other property had been distributed to holders of the ADSs on that day.
          (d) The Company may make such increases in each Fixed Conversion Rate as the Company deems advisable in order to avoid or diminish any income tax to holders of the Guarantor’s ordinary shares resulting from any dividend or distribution of the Guarantor’s ordinary shares (or issuance of rights or warrants to acquire the Guarantor’s ordinary shares) or from any event treated as such for tax purposes or for any other reason.
          (e) Adjustments to the Fixed Conversion Rates will be calculated to the nearest 1/100,000th of an ADS. Prior to the earlier of the Maturity Date and the date of a Fundamental Change, no adjustment in the Fixed Conversion Rates will be required unless the adjustment would require an increase or decrease of at least one percent in a Fixed Conversion Rate. If any adjustment is not required to be made because it would not change a Fixed Conversion Rate by at least one percent, then the adjustment will be carried forward and taken into account in any subsequent adjustment; provided, however, that on the earliest of the 25th Scheduled Trading Day immediately preceding September 15, 2013, the date of a Fundamental Change, or the date of any early conversion (whether at the Company’s option in accordance with Section 2.5, at the Holder’s option in accordance with Section 2.4 or upon an acceleration in connection with an event of default as provided in Section 7.2), adjustments to the Fixed Conversion Rates will be made with respect to any such adjustment carried forward and which has not been taken into account before such date.
          (f) The Fixed Conversion Rates will not be adjusted: (i) upon the issuance of any ordinary shares of the Guarantor pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Guarantor’s securities and the investment of additional optional amounts in ordinary shares of the Guarantor under any plan; (ii) upon the issuance of any ordinary shares of the Guarantor or rights, options or warrants to purchase those shares pursuant to any present or future employee, director or consultant benefit plan or program of or assumed by the Guarantor or any of its Subsidiaries; (iii) upon the issuance of any ordinary shares of the Guarantor pursuant to any option, warrant, right or exercisable, exchangeable or convertible security outstanding as of the date the Bonds were first issued; (iv) upon the issuance, offering, exercise, allocation, appropriation, modification or grant of any ordinary

24

 

shares or other securities to, or for the benefit of, (A) employees, former employees or directors (including directors holding or formerly holding executive office or the personal service company of any such person) or their spouses or relatives, in each case, of the Guarantor or any of its Subsidiaries or associated companies of any such person or to or for the benefit of, any trustee or trustees for the benefit of any such person, in any such case pursuant to any employees’ share or option scheme or (B) any other person in connection with the Bokamoso ESOP Trust employee share option scheme, the empowerment transaction entered into with Izingwe Holdings (Proprietary) Limited and any other black economic empowerment transaction entered into by the Guarantor; (v) for a change solely in the par value of the Guarantor’s ordinary shares; or (vi) for accrued and unpaid interest, if any;
          (g) If an adjustment is made to the Fixed Conversion Rates, an inversely proportional adjustment also will be made to the Threshold Appreciation Price and the Initial Price, solely for the purpose of determining which clauses of Section 2.3(b) will apply in determining the Daily Conversion Amount on each Trading Day during the Observation Period. Any such adjustment will be rounded to the nearest 1/10th of one cent.
          (h) The Company will have the power to correct any error in the adjustments set forth in this Section 3, and, absent manifest error, the Company’s action in so doing, as evidenced by a resolution of the Company’s Board of Directors or authorized committee thereof, will be final and conclusive.
     3.4 Notice of Adjustment.
          Whenever the Fixed Conversion Rates (and, with respect to any Fundamental Change Conversion, the ADS Prices set forth in the table included in the definition of Fundamental Change Conversion Rate) are to be adjusted, the Company shall: (i) compute such adjusted Fixed Conversion Rates and ADS Prices set forth in the table included in the definition of Fundamental Change Conversion Rate, and prepare and transmit to the Trustee an Officer’s Certificate setting forth such adjusted Fixed Conversion Rates and ADS Prices, as applicable, the method of calculation thereof in reasonable detail and the facts requiring such adjustment and upon which such adjustment is based; (ii) as soon as practicable following the occurrence of an event that requires an adjustment to a Fixed Conversion Rates and the ADS Prices (or if the Company is not aware of such occurrence, as soon as practicable after becoming so aware), provide, or cause to be provided, a written notice to the Holders of the Bonds of the occurrence of such event; and (iii) as soon as practicable following the determination of a revised Fixed Conversion Rates and ADS Prices, provide, or cause to be provided, to the Holders of the Bonds a statement setting forth in reasonable detail the method by which the adjustment to such Fixed Conversion Rates and the ADS Prices, as applicable, was determined and setting forth such revised Fixed Conversion Rates and ADS Prices, as applicable.
4. Conversion After Reorganization Event
     4.1 Reorganization Events.
          (a) In the event of:

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     (i) any recapitalization, reclassification or change of the Guarantor’s ordinary shares (other than changes only in par value, conversion of the Guarantor’s ordinary shares of par value into ordinary shares of no par value or resulting from a subdivision or combination), including any Exempt Newco Scheme;
     (ii) any consolidation or merger of the Guarantor with or into another Person;
     (iii) any sale, transfer, lease or conveyance to another Person of all or substantially all the property and assets of the Guarantor and its Subsidiaries; or
     (iv) any statutory exchange of the Guarantor’s securities with another Person (other than in connection with a merger or acquisition), any reclassification or any binding share exchange which reclassifies or changes the Guarantor’s outstanding ordinary shares;
in each case, as a result of which the Guarantor’s ordinary shares are exchanged for, or converted into, other securities, property or assets (including cash or any combination thereof) (any such event, a “reorganization event”), then, at and after the effective time of such reorganization event, each Bond outstanding immediately prior to such reorganization event will, without the consent of the Holders of the Bonds, become convertible into the kind and amount of such other securities, property or assets (including cash or any combination thereof) that holders of the ADSs received in such reorganization event (the “exchange property”); provided that if the kind and amount of exchange property receivable upon such reorganization event is not the same for each ordinary share held immediately prior to such reorganization event by a Person, then the exchange property receivable upon such reorganization event will be deemed to be the weighted average of the types and amounts of consideration received by the holders of ADSs that affirmatively make an election (or of all such holders if none makes an election). If a date of conversion follows a reorganization event, the applicable Fixed Conversion Rate then in effect will be applied to the amount of such exchange property received per ordinary share (multiplied by the number of ordinary shares of the Guarantor represented by an ADS) in the reorganization event (a “unit of exchange property”), as determined in accordance with this section. For the purpose of determining which clauses of Section 2.3(b) will apply on each Trading Day during the Observation Period and for the purpose of calculating the Daily Settlement Amount if Section 2.3(b)(ii) is applicable, the value of a unit of exchange property will be determined in good faith by the Board of Directors of the Guarantor, except that if a unit of exchange property includes ordinary shares or shares of common stock that are traded (including as ADSs) on a U.S. national securities exchange, the value of such ordinary shares or common stock will be the Daily VWAP of such security on the relevant Trading Day.
          (b) Section 4.1(a) above shall similarly apply to successive reorganization events and the provisions of Section 3 shall apply to any shares of capital stock of the Guarantor (or any successor) received by the holders of the Guarantor’s ordinary shares in any such reorganization event.
          (c) The Guarantor (or any successor of the Guarantor) shall, as soon as reasonably practicable (but in any event within 10 days) after the occurrence of any reorganization event, provide written notice to the Holders of Bonds of such occurrence of such

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event and of the kind and amount of the cash, securities or other property that constitute the exchange property. Failure to deliver such notice shall not affect the operation of this Section 4.1.
          (d) In connection with any reorganization event, the Dividend Threshold Amount shall be subject to adjustment as described in clause (i), clause (ii) or clause (iii) below, as the case may be.
     (i) In the case of a reorganization event in which the exchange property (determined, as appropriate, pursuant to the proviso of subsection (a) above and excluding any dissenters’ appraisal rights) is composed entirely of shares of common stock (the “merger common stock”), the Dividend Threshold Amount at and after the effective time of such reorganization event shall be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such reorganization event, divided by (y) the number of shares of merger common stock that a holder of one unit of Guarantor’s ordinary shares or ADS (divided, in the case of ADSs, by the number of Guarantor’s ordinary shares represented by an ADS) would receive in such reorganization event (such quotient rounded down to nearest cent).
     (ii) In the case of a reorganization event in which the exchange property (determined, as appropriate, pursuant to the proviso of subsection (a) above and excluding any dissenters’ appraisal rights) is composed in part of shares of merger common stock, the Dividend Threshold Amount at and after the effective time of such reorganization event shall be equal to (x) the Dividend Threshold Amount immediately prior to the effective time of such reorganization event, multiplied by (y) the merger valuation percentage for such reorganization event (such quotient rounded down to nearest cent).
     (iii) For the avoidance of doubt, in the case of a reorganization event in which the exchange property (determined, as appropriate, pursuant to the proviso of subsection (a) above and excluding any dissenters’ appraisal rights) is composed entirely of consideration other than shares of common stock, the Dividend Threshold Amount at and after the effective time of such reorganization event shall be equal to zero.
          (e) For purposes of subsection (d) of this Section 4.1, the following terms shall have the following meanings:
     (i) The “last reported sale price” of the merger common stock on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. securities exchange on which the merger common stock is traded. If the merger common stock is not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “last reported sale price” shall be the last quoted bid price for the merger common stock in the over-the-counter market on the relevant date as reported by Pink OTC Markets Inc. or a similar organization. If the merger common stock is not so quoted, the “last reported sale price” shall be the average of the mid-point

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of the last bid and ask prices for the merger common stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company or the Guarantor for this purpose.
     (ii) The “merger valuation percentage” for any reorganization event shall be equal to (x) the arithmetic average of the last reported sale prices of one share of such merger common stock over the relevant merger valuation period, divided by (y) the arithmetic average of the last reported sale prices of one unit of Guarantor’s ordinary shares or ADSs (divided, in the case of ADSs, by the number of Guarantor’s ordinary shares represented by an ADS and determined as if references to “merger common stock” in the definition of “last reported sale price” were references to the Guarantor’s ordinary shares or ADSs, as applicable) over the relevant merger valuation period.
     (iii) The “merger valuation period” for any reorganization event means the five consecutive Trading Day period immediately preceding, but excluding, the effective date for such reorganization event.
5. Automatic Cash Settlement; Cash True-Up In Certain Circumstances
     5.1 Automatic Cash Settlement.
          Until the Approval Date, the Bonds are subject to automatic cash settlement as described in this Section 5.1. Upon the occurrence of the Approval Date, the Company shall promptly notify the Trustee and the Holders that automatic cash settlement will no longer apply. In connection with any conversion of Bonds that takes place prior to the Approval Date, the Company will deliver a cash amount in lieu of the number of ADSs that would otherwise be deliverable upon conversion, determined by multiplying such number of ADSs by (a) in the event of a Fundamental Change Conversion, the applicable ADS Price, (b) in the event of mandatory conversion on the Stated Maturity Date, the average of the Daily VWAP for each Trading Day in the Observation Period, and (c) in the event of any other conversion, the average of the Daily VWAP of an ADS on each of the five consecutive Trading Days commencing on, and including, the Trading Day immediately following the date of conversion (such amount to be paid on the Business Day immediately following the last Trading Day of such five Trading Day period).
     5.2 Cash True-up in Certain Circumstances.
          (a) In the event that a Fundamental Change or adjustment in accordance with Section 3 hereof causes the maximum number of ADSs deliverable upon conversion of all then-outstanding Bonds to exceed the number of ADSs that can be issued upon the deposit of the then-remaining Reserved Shares, then upon any subsequent conversion, the Company may satisfy its obligation to deliver ADSs upon such a conversion by delivering a combination of ADSs and an amount of cash (the “true-up cash amount”) as follows:
     (i) In the event of any conversion of less than all the Bonds prior to the Stated Maturity Date, the number of ADSs to be delivered to a converting Holder will be equal to the product of the number of ADSs otherwise deliverable upon the conversion of such Holder’s Bonds and a fraction (which in any event shall not exceed 1), the numerator of

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which is the total then-remaining number of Reserved Shares immediately prior to the time of conversion, and the denominator of which is the total number of ADSs that would be deliverable (without regard to the application of this paragraph) in the event that all outstanding Bonds were converted into ADSs immediately prior to such time using the Maximum Conversion Rate (such product rounded down to the nearest whole number of ADSs). The true-up cash amount will be calculated by subtracting the number of ADSs obtained from the calculation in the preceding sentence from the number of ADSs otherwise deliverable (prior to the application of this paragraph) upon the conversion of such Holder’s Bond, and multiplying the resulting number of ADSs by the average of the Daily VWAP of an ADS on each of the five consecutive Trading Days commencing on, and including, the Trading Day immediately following the date on which the Company notifies Holders of the number of ADSs they will receive upon conversion (determined as described in this clause (i)).
          (ii) In the event of a conversion of all the Bonds on the same date occurring prior to the 25th Scheduled Trading Day immediately preceding September 15, 2013, the Company will deliver all of the ADSs that can be created from the then-remaining Reserved Shares pro rata among all Holders of Bonds, and the true-up cash amount will be calculated by subtracting such number of ADSs from the number of ADSs deliverable (without regard to the application of this paragraph) upon the conversion of such Holder’s Bond, and multiplying the resulting number of ADSs by the average of the Daily VWAP of an ADS on each of the five consecutive Trading Days commencing on, and including, the Trading Day immediately following the date on which the Company notifies Holders of the number of ADSs they will receive upon conversion (determined as described in this clause (ii)).
          (iii) Upon mandatory conversion on the Stated Maturity Date, the Company will deliver all of the ADSs that can be created from the then-remaining Reserved Shares pro rata among all Holders of Bonds, and the true-up cash amount will be calculated by subtracting such number of ADSs from the number of ADSs deliverable (without regard to the application of this paragraph) upon the conversion of such Holder’s Bond as determined during the Observation Period, and multiplying the resulting number of ADSs by the average of the Daily VWAP of an ADS on each of the five consecutive Trading Days commencing on, and including, the Trading Day immediately following the date on which the Company notifies Holders of the number of ADSs they will receive upon conversion (determined as described in this clause (iii)).
          (iv) The amount of cash deliverable in respect of each Bond shall be calculated to the nearest cent, or, if there is no nearest cent, then to the next higher cent.
          (b) If the Company is required to make a cash true-up payment in connection with any conversion of Bonds:
     (i) in the event of an early conversion in accordance with Section 2.4, Section 2.5 or Section 2.6 hereof, the Company shall notify converting Holders of the number of ADSs they will receive upon conversion at or prior to the close of business on the Business Day immediately following the date of conversion, and the Company shall

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pay the cash true-up amount on the Business Day immediately following the last Trading Day of the five Trading Day period described in Section 5.2(a)(i) or Section 5.2(a)(ii) (as applicable);
     (ii) in the event of a conversion following an acceleration of the Maturity Date in connection with an Event of Default, the Company shall notify Holders of the number of ADSs they will receive upon conversion at or prior to the close of business on the Business Day immediately following the date of acceleration, and the cash true-up amount will become due and payable on the Business Day immediately following the last Trading Day of the five Trading Day period described in Section 5.2(a)(ii); and
     (iii) in the event of mandatory conversion on the Stated Maturity Date, the Company shall notify Holders of the number of ADSs they will receive upon conversion at or prior to the close of business on the Business Day immediately following the last Trading Day of the Observation Period, and the Company shall pay the cash true-up amount on the Business Day immediately following the last Trading Day of the five Trading Day period described in Section 5.2(a)(iii).
6. Other Provisions
     6.1 No Early Redemption.
          The Company shall not be permitted to redeem the Bonds prior to the Stated Maturity Date. The provisions of Article Eleven of the Base Indenture shall not apply to the Bonds. Nothing in this Section 6.1 shall operate to limit the Company’s right of early conversion in accordance with Section 2.5 hereof.
     6.2 Payment of Additional Amounts.
          To the extent provided in Section 1005 of the Base Indenture, and subject to the limitations and exceptions set forth therein, the Company or the Guarantor will pay such Additional Amounts (as defined in the Base Indenture) as may be necessary to ensure that the net amounts receivable by Holders of Bonds after withholding or deduction for taxes will equal the amount that would have been payable in the absence of such withholding or deduction. For the avoidance of doubt, any cash paid (in lieu of ADSs delivered) at maturity of the Bonds will be considered (x) “amounts receivable by Holders of Bonds” for purposes of this Section 6.2 and (y) payments of, or in respect of, principal of Securities for purposes of Section 1005 of the Base Indenture.
     References in this Supplemental Indenture to the payment of principal of or interest (including Deferred Interest) on or any make-whole or present value payment in respect of, any Bond of this series (or any payments pursuant to the Guarantee thereof) shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions herein and express mention of the payment of Additional Amounts in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
     6.3 Taxes.
          The Company will pay any and all documentary, stamp, transfer or similar taxes that may be payable in respect of the transfer and delivery of ADSs (or other securities) pursuant hereto; provided, however, that the Company shall not be required to pay any such tax which may be payable in respect of any transfer involved in the delivery of ADSs (or other securities) in a name other than that in which the Bonds so exchanged were registered, and no such transfer or delivery shall be made unless and until the Holder requesting such transfer has paid to the

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Company the amount of any such tax, or has established, to the satisfaction of the Company, that such tax has been paid.
     6.4 Defeasance.
          The defeasance and covenant defeasance provisions of Article Fourteen of the Base Indenture shall not apply to the Bonds.
     6.5 Further Issuances.
          The Company reserves the right to issue, from time to time, without the consent of the Holders of the Bonds, additional Bonds on terms and conditions identical to those of the Bonds so long as a sufficient number of authorized ordinary shares of the Guarantor is available to satisfy the conversion obligations with respect to such additional Bonds, which additional Bonds shall increase the aggregate principal amount of, and shall be consolidated and form a single series with, the Bonds.
     6.6 Guarantee.
          (a) With respect to the Bonds only and for the benefit of only the Holders thereof, Section 204 of the Base Indenture is replaced with the following:
          “For value received, ANGLOGOLD ASHANTI LIMITED, a corporation duly organized and existing under the laws of South Africa (herein called the “Guarantor”, which term includes any successor Person under the Base Indenture (the “Base Indenture”), as supplemented by the Supplemental Indenture (the “Supplemental Indenture” and, as so supplemented, the “Indenture”) referred to in the Bond on which this Guarantee is endorsed), has unconditionally guaranteed, pursuant to the terms of the Guarantee contained in the Base Indenture, the performance and full and punctual payment of the Company’s obligations under the Indenture and the Bonds, whether for delivery of ADSs subject to the Shareholder Conversion Approval (as defined in the Supplemental Indenture), or the cash value thereof upon conversion or payment of interest or any of the amounts that may become due and payable in respect of the Bonds.
          All payments pursuant to this Guarantee shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of the Isle of Man or South Africa or the jurisdiction of organization, tax residence or place of business of the Company, the Guarantor or any successor to the Company or the Guarantor, or any political subdivision or taxing authority thereof or therein, unless such taxes, duties, assessments or governmental charges are required by the Isle of Man or South Africa or such other jurisdiction or any such subdivision or authority to be withheld or deducted. In that event, the Guarantor will pay such Additional Amounts as will result (after deduction of such taxes, duties, assessments or governmental charges and any additional taxes, duties, assessments or governmental charges payable in respect of such) in the payment to the Holder of the Bond on which this Guarantee is endorsed of the amounts which would have been payable in respect of the Guarantee thereof had no such withholding or deduction been required, subject to certain exceptions as set forth in Article Ten of the Base Indenture.

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          The Guarantee will be the Guarantor’s general, unsecured and subordinated obligation and will be subordinated to all of the Guarantor’s existing and future Indebtedness, as provided in Section 9.2 of the Supplemental Indenture.
          The obligations of the Guarantor to the Holders of the Bonds and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article Sixteen of the Base Indenture as modified by Section 6.6 of the Supplemental Indenture, and reference is hereby made to such Base Indenture and the Supplemental Indenture provisions for the precise terms of the Guarantee.
          In the event of any inconsistency between the terms of this Guarantee and the provisions of the Indenture, the Indenture shall control.
          The Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Bond upon which this Guarantee is endorsed shall have been executed by the Trustee under the Indenture by the manual signature of one of its authorized signatories.
          The Guarantee shall be governed by and construed in accordance with the laws of the State of New York.
          Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Indenture.
          IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed.
         
  Dated:

ANGLOGOLD ASHANTI LIMITED
 		  
  By:      
    Name:      
    Title:”      
 
          (b) With respect to the Bonds only and for the benefit of only the Holders thereof, the first sentence of the second paragraph of Section 1601 of the Base Indenture is replaced with the following:
     “The Guarantor hereby irrevocably and unconditionally guarantees to each Holder of the Bonds, the performance and full and punctual payment of all of the Company’s obligations under the Indenture and the Bonds, whether for delivery of ADSs or payment of interest (including any Deferred Interest and any Additional Amounts) or any other amounts that may become due and payable in respect of the Bonds. Upon failure by the Company to perform any obligation or to punctually pay any amount when due, the Guarantor shall forthwith perform such obligation or pay the amount that is required to be paid and has not been

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paid. The foregoing Guarantee is subject to the subordination provisions set forth in the Indenture relating to the Bonds.”
     6.7 Delivery of ADSs upon Maturity.
          All ADSs (or other securities) deliverable to Holders upon the Maturity of the Bonds shall be delivered to such Holders, whenever practicable, in such manner (such as by book-entry transfer) so as to assure same-day transfer of such securities to Holders and otherwise in the manner customary at such time for delivery of such securities and securities of the same type.
7. Events of Default; Acceleration; Remedies
     7.1 Additional Events of Default.
          In addition to the Events of Default set forth in Section 501 of the Base Indenture, the following shall constitute Events of Default with respect to the Bonds:
          (a) failure to deliver the ADSs or other consideration due upon conversion;
          (b) failure to give timely notice of a Fundamental Change as provided in Section 2.6(b), and continuation of such failure for a period of five Business Days; and
          (c) the Guarantee of the Bonds being held in any judicial proceeding to be unenforceable or invalid or ceasing for any reason to be in full force and effect or the Guarantor’s, or any Person’s acting on behalf of the Guarantor, denying or disaffirming the Guarantor’s obligations under the Guarantee.
     7.2 Mandatory Conversion upon Acceleration.
          If the principal amount of the Bonds is declared due and payable as provided in Section 502 of the Base Indenture, then, to the extent permitted by applicable law, the Bonds will automatically convert into ADSs at the Maximum Conversion Rate (subject to adjustment as provided in Section 3), and the Holders thereof shall be entitled to receive all accrued and unpaid interest (including any Deferred Interest) to, but excluding, the date of acceleration and the present value of all remaining interest payments on the Bonds, including the interest payment due on September 15, 2013 (but excluding any accrued and unpaid interest to the date of acceleration), payable in cash and computed using a discount rate equal to the Treasury Yield plus 50 basis points.
     7.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
          References in Section 503 of the Base Indenture to interest shall include Deferred Interest, if any, and references in Section 503 of the Base Indenture to principal (and premium, if any), shall include consideration due upon conversion of the Bonds.

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     7.4 Unconditional Right of Holders to Receive Conversion Consideration and Interest.
          Notwithstanding any other provision in this Supplemental Indenture or Section 508 of the Base Indenture, the Holder of a Bond shall have the right, which is absolute and unconditional, to receive payment of the consideration deliverable upon conversion and (subject to Section 307 of the Base Indenture and Section 2.2 hereof) interest on such Bond on the respective due dates expressed in the Bonds and this Supplemental Indenture, and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
     7.5 Waiver of Past Defaults Relating to Conversion Consideration.
          References in Section 513 of the Base Indenture to the payment of the principal of (or premium, if any) or interest, if any, on any Security shall include consideration due upon conversion of the Bonds.
8. Covenants
     8.1 Inapplicability of Certain Covenants and Provisions.
          The covenants of the Company set forth in Section 1006 (Limitation on Liens) and Section 1007 (Limitation on Sale and Leaseback Transactions) of the Base Indenture shall not apply to the Bonds. Sections 307(b), 308 and 312 and Articles Twelve and Thirteen of the Base Indenture shall not apply to the Bonds.
     8.2 ADSs Free and Clear.
          With respect to the Bonds only and for the benefit of only the Holders thereof, the Company covenants and warrants that upon conversion of a Bond pursuant to the Base Indenture and this Supplemental Indenture, the Holder of a Bond shall receive valid title to the ADSs (and, in the event a reorganization event has occurred and securities or other property are delivered, securities or other property) for which such Bond is at such time convertible pursuant to the Base Indenture and this Supplemental Indenture, free and clear of any and all liens, claims, charges and encumbrances whatsoever. To the extent provided in Section 6.3, the Company will pay all taxes and charges with respect to the delivery of ADSs (and other securities) delivered in exchange for Bonds hereunder.
     8.3 Maintenance of Office or Agency.
          With respect to any Bonds that are not in the form of a Global Bond, the Company will maintain an office or agency in the Borough of Manhattan, The City of New York, in accordance with Section 1002 of the Base Indenture.
     8.4 Form of Bonds.
          The Bonds shall be in substantially the forms set forth in Exhibit A hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or

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permitted by this Supplemental Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Bonds, as evidenced by their execution thereof.
9. Subordination of the Bonds and the Guarantee
     9.1 Subordination of the Bonds.
          (a) Subordination. The Company covenants and agrees, and each Holder of a Bond, by its acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Section 9.1, the payment of the principal of and interest (including any Deferred Interest and Additional Amounts) on and any make-whole or present value payment in respect of each and all of the Bonds are hereby expressly made subordinate and subject in right of payment to the prior payment in full of all amounts then due and payable in respect of all existing and future Company Senior Indebtedness.
          (b) Payment Over of Proceeds upon Dissolution, Etc. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relating to the Company (each such event, if any, herein sometimes referred to as a “Company Proceeding”), then the holders of Company Senior Indebtedness shall be entitled to receive payment in full of Allocable Amounts of such Company Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Company Senior Indebtedness, before the Holders of the Bonds are entitled to receive or retain any payment or distribution of any kind or character, whether in cash, property or securities (including any payment or distribution that may be payable or deliverable by reason of the payment of any other Indebtedness of the Company subordinated to the payment of the Bonds, such payment or distribution being hereinafter referred to as a “Junior Subordinated Payment”), on account of principal of and interest (including any Deferred Interest and Additional Amounts) on and any make-whole or present value payment in respect of the Bonds or on account of the purchase or other acquisition of Bonds by the Company or any Subsidiary of the Company, and to that end holders of Company Senior Indebtedness shall be entitled to receive, for application to the payment of Allocable Amounts, any payment or distribution of any kind or character, whether in cash, property or securities, including any Junior Subordinated Payment, that may be deliverable in respect of the Bonds in any such Company Proceeding.
          In the event that, notwithstanding the foregoing provisions of this Section 9.1(b), the Trustee or a Holder of Bonds shall have received any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, including any Junior Subordinated Payment, before all Allocable Amounts of all Company Senior Indebtedness are paid in full or payment thereof is provided for in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Company Senior Indebtedness, and if such fact shall, at or prior to the time of such payment or distribution, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment or distribution shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company for

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application to the payment of all Allocable Amounts of all Company Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Company Senior Indebtedness.
          For purposes of this Section 9.1 only, the words “any payment or distribution of any kind or character, whether in cash, property or securities” shall not be deemed to include (i) ADSs (or a corresponding number of ordinary shares of the Guarantor) delivered in accordance with the conversion provisions of the Bonds; and (ii) shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment which securities are subordinated in right of payment to all then outstanding Company Senior Indebtedness to substantially the same extent as the Bonds are so subordinated as provided in this Section 9.1. The consolidation of the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the sale of all or substantially all of its properties and assets as an entirety to another Person upon the terms and conditions set forth in Article Eight of the Base Indenture shall not be deemed a Company Proceeding for the purposes of this Section 9.1(b) if the Person formed by such consolidation or into which the Company is merged or the Person which acquires by sale such properties and assets as an entirety, as the case may be, shall, as a part of such consolidation, merger or sale comply with the conditions set forth in Article Eight of the Base Indenture.
          (c) Prior Payment to Company Senior Indebtedness upon Acceleration of Bonds. In the event that the Bonds are declared due and payable before the Stated Maturity Date, then and in such event the holders of the Company Senior Indebtedness outstanding at the time the Bonds so become due and payable shall be entitled to receive payment in full of all Allocable Amounts due on or in respect of such Company Senior Indebtedness (including any amounts due upon acceleration), or provision shall be made for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Company Senior Indebtedness, before the Holders of the Bonds are entitled to receive any payment or distribution of any kind or character, whether in cash, properties or securities (including any Junior Subordinated Payment) by the Company on account of principal of and interest (including any Deferred Interest and Additional Amounts) on and any make-whole or present value payment in respect of the Bonds or on account of the purchase or other acquisition of Bonds by the Company or any Subsidiary of the Company; provided, however, that nothing in this Section 9.1(c) shall prevent the automatic conversion of the Bonds into ADSs (or a corresponding number of ordinary shares of the Guarantor) at the Maximum Conversion Rate as provided in this Supplemental Indenture.
          In the event that, notwithstanding the foregoing, the Company shall make any payment to the Trustee or a Holder of Bonds prohibited by the foregoing provisions of this Section 9.1(c), and if such fact shall, at or prior to the time of such payment, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment shall be paid over and delivered forthwith to the Company.
          The provisions of this Section 9.1(c) shall not apply to any payment with respect to which Section 9.1(b) would be applicable.

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          (d) No Payment When Company Senior Indebtedness in Default. (i) In the event and during the continuation of any default in the payment of the principal of (or premium, if any) or interest on any Company Senior Indebtedness, or in the event that any event of default with respect to any Company Senior Indebtedness shall have occurred and be continuing, permitting such holder of Company Senior Indebtedness to declare due and payable prior to the date on which it would otherwise have become due and payable, unless and until such event of default shall have been cured or waived or shall have ceased to exist and such acceleration shall have been rescinded or annulled, or (ii) in the event any judicial proceeding shall be pending with respect to any such default in payment or such event of default, then no payment or distribution of any kind or character, whether in cash, properties or securities (including any Junior Subordinated Payment) shall be made by the Company on account of principal of and interest (including any Deferred Interest and Additional Amounts) on and any make-whole or present value payment in respect of the Bonds or on account of the purchase or other acquisition of Bonds by the Company or any Subsidiary of the Company, in each case unless and until all Allocable Amounts of such Company Senior Indebtedness are paid in full; provided, however, that nothing in this Section 9.1(d) shall prevent the automatic conversion of the Bonds into ADSs (or a corresponding number of ordinary shares of the Guarantor) at the Maximum Conversion Rate as provided in this Supplemental Indenture.
          In the event that, notwithstanding the foregoing, the Company shall make any payment to the Trustee or a Holder of Bonds prohibited by the foregoing provisions of this Section 9.1(d), and if such fact shall, at or prior to the time of such payment, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment shall be paid over and delivered forthwith to the Company.
          The provisions of this Section 9.1(d) shall not apply to any payment with respect to which Section 9.1(b) or Section 9.1(c) would be applicable.
          (e) Payment Permitted if No Default. Nothing contained in this Section 9.1 or elsewhere in this Supplemental Indenture or in the Bonds or the Guarantee shall prevent (i) the Company, at any time except during the pendency of any Company Proceeding referred to in Section 9.1(b) or under the conditions described in Sections 9.1(c) and 9.1(d), from making payments at any time of principal of and interest (including any Deferred Interest and Additional Amounts) on and any make-whole or present value payment in respect of the Bonds or (ii) the application by the Trustee of any money deposited with it hereunder to the payment of or on account of principal of and interest (including any Deferred Interest and Additional Amounts) on and any make-whole or present value payment in respect of the Bonds or the retention of such payment by the Holders of Bonds if, at the time of such application by the Trustee, it did not have knowledge that such payment would have been prohibited by the provisions of this Section 9.1.
          (f) Subrogation to Rights of Holders of Company Senior Indebtedness. Subject to the payment in full of all amounts due or to become due on all Company Senior Indebtedness, or the provision for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Company Senior Indebtedness, the Holders of the Bonds shall be subrogated to the extent of the payments or distributions made to the holders of such Company Senior Indebtedness pursuant to the provisions of this Section 9.1 (equally and ratably

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with the holders of all Indebtedness of the Company which by its express terms is subordinated to Company Senior Indebtedness to substantially the same extent as the Bonds are subordinated to the Company Senior Indebtedness and is entitled to like rights of subrogation by reason of any payments or distributions made to holders of such Company Senior Indebtedness) to the rights of the holders of such Company Senior Indebtedness to receive payments and distributions of cash, property and securities applicable to the Company Senior Indebtedness until the principal of and interest (including any Deferred Interest and Additional Amounts) on and any make-whole or present value payment in respect of the Bonds shall be paid in full. For purposes of such subrogation, no payments or distributions to the holders of the Company Senior Indebtedness of any cash, property or securities to which the Holders of the Bonds or the Trustee would be entitled except for the provisions of this Section 9.1, and no payments over pursuant to the provisions of this Section 9.1 to the holders of Company Senior Indebtedness by Holders of the Bonds or the Trustee, shall, as among the Company, its creditors other than holders of Company Senior Indebtedness, and the Holders of the Bonds, be deemed to be a payment or distribution by the Company to or on account of the Company Senior Indebtedness.
          (g) Provisions Solely to Define Relative Rights. The provisions of this Section 9.1 are and are intended solely for the purpose of defining the relative rights of the Holders of the Bonds on the one hand and the holders of Company Senior Indebtedness on the other hand. Nothing contained in this Section 9.1 or elsewhere in this Supplemental Indenture or the Bonds or the Guarantee is intended to or shall (a) impair, as between the Company and the Holders of the Bonds, the obligations of the Company, which are absolute and unconditional, to pay to the Holders of the Bonds principal of and (subject to Section 307 of the Base Indenture and Section 2.2 of this Supplemental Indenture) interest (including any Deferred Interest and Additional Amounts) on and any make-whole or present value payment in respect of the Bonds and pay the consideration deliverable upon conversion of the Bonds, when and in the manner the same shall become due and payable in accordance with their terms; or (b) affect the relative rights against the Company of the Holders of the Bonds and creditors of the Company other then their rights in relation to the holders of Company Senior Indebtedness; or (c) prevent the Trustee or a Holder of Bonds from exercising all remedies otherwise permitted by applicable law upon default under this Supplemental Indenture or the Base Indenture including, without limitation, filing and voting claims in any Company Proceeding, subject to the rights, if any, under this Section 9.1 of the holders of Company Senior Indebtedness to receive cash, property and securities otherwise payable or deliverable to the Trustee or such Holder.
     9.2 Subordination of the Guarantee.
          (a) Subordination. The Guarantor covenants and agrees, and each Holder of a Bond, by its acceptance thereof, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth in this Section 9.2, the obligations of the Guarantor under the Guarantee with respect to the principal of and interest (including any Deferred Interest and Additional Amounts) on and any make-whole or present value payment in respect of each and all of the Bonds are hereby expressly made subordinate and subject in right of payment to the prior payment in full of all amounts then due and payable in respect of all existing and future Guarantor Indebtedness; provided that with respect to the payment of interest (including any Deferred Interest and Additional Amounts) and any make-whole or present value payment, the

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Guarantee shall not be subordinated to, and shall rank senior to, the Guarantor’s share capital and Guarantees by the Guarantor of share capital of any Subsidiary of the Guarantor.
          (b) Payment Over of Proceeds upon Dissolution, Etc. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relating to the Guarantor (each such event, if any, herein sometimes referred to as a “Guarantor Proceeding”), then the holders of Guarantor Indebtedness shall be entitled to receive payment in full of Allocable Amounts of such Guarantor Indebtedness, or provision shall be made for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Guarantor Indebtedness, before the Holders of the Bonds are entitled to receive or retain any payment or distribution under the Guarantee of any kind or character, whether in cash, property or securities, on account of principal of and interest (including any Deferred Interest and Additional Amounts) on and any make-whole or present value payment in respect of the Bonds or on account of the purchase or other acquisition of Bonds by the Guarantor or any Subsidiary of the Guarantor, and to that end holders of Guarantor Indebtedness shall be entitled to receive, for application to the payment of Allocable Amounts, any payment or distribution of any kind or character, whether in cash, property or securities, that may be deliverable in respect of the Guarantee in any such Guarantor Proceeding.
          In the event that, notwithstanding the foregoing provisions of this Section 9.2(b), the Trustee or a Holder of Bonds shall have received any payment or distribution under the Guarantee of assets of the Guarantor of any kind or character, whether in cash, property or securities, before all Allocable Amounts of all Guarantor Indebtedness are paid in full or payment thereof is provided for in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Guarantor Indebtedness, and if such fact shall, at or prior to the time of such payment or distribution, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment or distribution shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Guarantor for application to the payment of all Allocable Amounts of all Guarantor Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Guarantor Indebtedness.
          For purposes of this Section 9.2 only, the words “any payment or distribution under the Guarantee of any kind or character, whether in cash, property or securities” shall not be deemed to include (i) ADSs (or a corresponding number of ordinary shares of the Guarantor) delivered in accordance with the conversion provisions of the Bonds; and (ii) capital stock of the Guarantor as reorganized or readjusted, or securities of the Guarantor or any other corporation provided for by a plan of reorganization or readjustment which securities are subordinated in right of payment to all then outstanding Guarantor Indebtedness to substantially the same extent as the Guarantee is so subordinated as provided in this Section 9.2. The consolidation of the Guarantor with, or the merger of the Guarantor into, another Person or the liquidation or dissolution of the Guarantor following the sale of all or substantially all of its properties and assets as an entirety to another Person upon the terms and conditions set forth in Article Eight of the Base Indenture shall not be deemed a Guarantor Proceeding for the purposes of this Section 9.2(b) if the Person formed by such consolidation or into which the Guarantor is merged or the Person which acquires by sale such properties and assets as an entirety, as the case may be,

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shall, as a part of such consolidation, merger or sale comply with the conditions set forth in Article Eight of the Base Indenture.
          (c) Prior Payment to Guarantor Indebtedness upon Acceleration of Bonds. In the event that the Bonds are declared due and payable before the Stated Maturity Date, then and in such event the holders of the Guarantor Indebtedness outstanding at the time the Bonds so become due and payable shall be entitled to receive payment in full of all Allocable Amounts due on or in respect of such Guarantor Indebtedness (including any amounts due upon acceleration), or provision shall be made for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Guarantor Indebtedness, before the Holders of the Bonds are entitled to receive any payment or distribution under the Guarantee of any kind or character, whether in cash, properties or securities on account of principal of and interest (including any Deferred Interest and Additional Amounts) on and any make-whole or present value payment in respect of the Bonds or on account of the purchase or other acquisition of Bonds by the Guarantor or any Subsidiary of the Guarantor; provided, however, that nothing in this Section 9.2(c) shall prevent the automatic conversion of the Bonds into ADSs (or a corresponding number of ordinary shares of the Guarantor) at the Maximum Conversion Rate as provided in this Supplemental Indenture.
          In the event that, notwithstanding the foregoing, the Guarantor shall make any payment to the Trustee or a Holder of Bonds prohibited by the foregoing provisions of this Section 9.2(c), and if such fact shall, at or prior to the time of such payment, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment shall be paid over and delivered forthwith to the Guarantor.
          The provisions of this Section 9.2(c) shall not apply to any payment with respect to which Section 9.2(b) would be applicable.
          (d) No Payment When Guarantor Indebtedness in Default. (i) In the event and during the continuation of any default in the payment of the principal of (or premium, if any) or interest on any Guarantor Indebtedness, or in the event that any event of default with respect to any Guarantor Indebtedness shall have occurred and be continuing, permitting the holder of such Guarantor Indebtedness to declare due and payable prior to the date on which it would otherwise have become due and payable, unless and until such event of default shall have been cured or waived or shall have ceased to exist and such acceleration shall have been rescinded or annulled, or (ii) in the event any judicial proceeding shall be pending with respect to any such default in payment or such event of default, then no payment or distribution under the Guarantee of any kind or character, whether in cash, properties or securities shall be made by the Guarantor on account of principal of and interest (including any Deferred Interest and Additional Amounts) on and any make-whole or present value payment in respect of the Bonds or on account of the purchase or other acquisition of Bonds by the Guarantor or any Subsidiary of the Guarantor, in each case unless and until all Allocable Amounts of such Guarantor Indebtedness are paid in full; provided, however, that nothing in this Section 9.2(d) shall prevent the automatic conversion of the Bonds into ADSs (or a corresponding number of ordinary shares of the Guarantor) at the Maximum Conversion Rate as provided in this Supplemental Indenture.

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          In the event that, notwithstanding the foregoing, the Guarantor shall make any payment to the Trustee or a Holder of Bonds prohibited by the foregoing provisions of this Section 9.2(d), and if such fact shall, at or prior to the time of such payment, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment shall be paid over and delivered forthwith to the Guarantor.
          The provisions of this Section 9.2(d) shall not apply to any payment with respect to which Section 9.2(b) or Section 9.2(c) would be applicable.
          (e) Payment Permitted if No Default. Nothing contained in this Section 9.2 or elsewhere in this Supplemental Indenture or in the Bonds or the Guarantee shall prevent (i) the Guarantor, at any time except during the pendency of any Guarantor Proceeding referred to in Section 9.2(b) or under the conditions described in Sections 9.2(c) and 9.2(d), from making payments under the Guarantee at any time of principal of and interest (including any Deferred Interest and Additional Amounts) on and any make-whole or present value payment in respect of the Bonds or (ii) the application by the Trustee of any money deposited with it hereunder to the payment under the Guarantee of or on account of principal of and interest (including any Deferred Interest and Additional Amounts) on and any make-whole or present value payment in respect of the Bonds or the retention of such payment by the Holders of Bonds if, at the time of such application by the Trustee, it did not have knowledge that such payment would have been prohibited by the provisions of this Section 9.2.
          (f) Subrogation to Rights of Holders of Guarantor Indebtedness. Subject to the payment in full of all amounts due or to become due on all Guarantor Indebtedness, or the provision for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Guarantor Indebtedness, the Holders of the Bonds shall be subrogated to the extent of the payments or distributions made to the holders of such Guarantor Indebtedness pursuant to the provisions of this Section 9.2 (equally and ratably with the holders of all Indebtedness of the Guarantor which by its express terms is subordinated to Guarantor Indebtedness to substantially the same extent as the Bonds are subordinated to the Guarantor Indebtedness and is entitled to like rights of subrogation by reason of any payments or distributions made to holders of such Guarantor Indebtedness) to the rights of the holders of such Guarantor Indebtedness to receive payments and distributions of cash, property and securities applicable to the Guarantor Indebtedness until the principal of and interest (including any Deferred Interest and Additional Amounts) on and any make-whole or present value payment in respect of the Bonds shall be paid in full. For purposes of such subrogation, no payments or distributions to the holders of the Guarantor Indebtedness of any cash, property or securities to which the Holders of the Bonds or the Trustee would be entitled except for the provisions of this Section 9.2, and no payments over pursuant to the provisions of this Section 9.2 to the holders of Guarantor Indebtedness by Holders of the Bonds or the Trustee, shall, as among the Guarantor, its creditors other than holders of Guarantor Indebtedness, and the Holders of the Bonds, be deemed to be a payment or distribution by the Guarantor to or on account of the Guarantor Indebtedness.
          (g) Provisions Solely to Define Relative Rights. The provisions of this Section 9.2 are and are intended solely for the purpose of defining the relative rights of the Holders of the Bonds under the Guarantee on the one hand and the holders of Guarantor Indebtedness on the other hand. Nothing contained in this Section 9.2 or elsewhere in this

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Supplemental Indenture or the Bonds or the Guarantee is intended to or shall (a) impair, as between the Guarantor and the Holders of the Bonds, the obligations of the Guarantor under the Guarantee, which are absolute and unconditional, to pay to the Holders of the Bonds principal of and (subject to Section 307 of the Base Indenture and Section 2.2 of this Supplemental Indenture) interest (including any Deferred Interest and Additional Amounts) on and any make-whole or present value payment in respect of the Bonds and pay the consideration deliverable upon conversion of the Bonds as, when and in the manner the same shall become due and payable in accordance with their terms; or (b) affect the relative rights against the Guarantor of the Holders of the Bonds and creditors of the Guarantor other then their rights in relation to the holders of Guarantor Indebtedness; or (c) prevent the Trustee or a Holder of Bonds from exercising all remedies otherwise permitted by applicable law upon default under this Supplemental Indenture or the Base Indenture including, without limitation, filing and voting claims in any Guarantor Proceeding, subject to the rights, if any, under this Section 9.2 of the holders of Guarantor Indebtedness to receive cash, property and securities otherwise payable or deliverable to the Trustee or such Holder.
          (h) Holders Claims for Principal Amount Limited to Equity Rights. Notwithstanding any other provision contained in this Section 9.2 or elsewhere in this Supplemental Indenture or the Bonds or the Guarantee, and regardless of whether Shareholder Conversion Approval has been obtained, with respect to the principal amount of the Bonds (but not interest (including any Deferred Interest and Additional Amounts), or any make-whole, or present value payment in respect of the Bonds), a Holder of Bonds shall be entitled to participate in the proceeds of the liquidation of the Guarantor in any Guarantor Proceeding only to the same extent as a holder of a number of the Guarantor’s ordinary shares equal to the number of ordinary shares underlying the ADSs such Holder of Bonds would have received upon conversion of such Bonds at the Maximum Conversion Rate.
     9.3 Trustee to Effect Subordination.
          Each Holder of a Security, by acceptance thereof, authorizes and directs the Trustee on such Holder’s behalf to take such action as may be necessary or appropriate to acknowledge or effectuate the subordination provided in Section 9.1 and Section 9.2 and appoints the Trustee such Holder’s attorney-in-fact for any and all such purposes.
     9.4 No Waiver of Subordination Provisions.
          No right of any present or future holder of Company Senior Indebtedness or Guarantor Indebtedness to enforce subordination as provided herein shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or the Guarantor or by any act or failure to act, in good faith, by any such holder, or by any non-compliance by the Company or the Guarantor with the terms, provisions and covenants of this Supplemental Indenture or the Base Indenture, regardless of any knowledge thereof that any such holder may have or otherwise be charged with.
          Without in any way limiting the generality of the immediately preceding paragraph, the holders of Company Senior Indebtedness and Guarantor Indebtedness may, at any time and from time to time, without the consent of or notice to the Trustee or the Holders of the Bonds, without incurring responsibility to the Holders of the

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Bonds and without impairing or releasing the subordination provided in this Section 9 or the obligations hereunder of the Holders of the Bonds to the holders of Company Senior Indebtedness and Guarantor Indebtedness, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Company Senior Indebtedness and Guarantor Indebtedness, or otherwise amend or supplement in any manner Company Senior Indebtedness and Guarantor Indebtedness or any instrument evidencing the same or any agreement under which Company Senior Indebtedness and Guarantor Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Company Senior Indebtedness or Guarantor Indebtedness; (iii) release any Person liable in any manner for the collection of Company Senior Indebtedness and Guarantor Indebtedness; and (iv) exercise or refrain from exercising any rights against the Company, the Guarantor and any other Person.
     9.5 Notice to Trustee.
          The Company and the Guarantor shall give prompt written notice to the Trustee of any fact known to them which would prohibit the making of any payment to or by the Trustee in respect of the Bonds or the Guarantee. Notwithstanding the provisions of this Section 9 or any other provision of this Supplemental Indenture or the Base Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee in respect of the Bonds or the Guarantee, unless and until a responsible officer of the Trustee shall have received written notice thereof from the Company or the Guarantor or a holder of Company Senior Indebtedness or Guarantor Indebtedness or from any trustee, agent or representative therefor; provided, however, that if the Trustee shall not have received the notice provided for in this Section 9.5 at least three Business Days prior to the date upon which by the terms hereof any monies may become payable for any purpose (including, without limitation, the payment of the principal of or interest (including any Deferred Interest or Additional Amounts) on or any make-whole or present value payment on the Bonds), then, anything herein contained to the contrary notwithstanding, the Trustee shall have the full power and authority to receive such monies and apply the same to the purpose for which they were received and shall not be affected by any notice to the contrary which may be received by it within three Business Days prior to such date.
          Subject to the provisions of Section 602 of the Base Indenture, the Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Company Senior Indebtedness or Guarantor Indebtedness (or a trustee therefor) to establish that such notice has been given by a holder of Company Senior Indebtedness or Guarantor Indebtedness (or a trustee therefor). In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Company Senior Indebtedness or Guarantor Indebtedness to participate in any payment or distribution pursuant to this Section, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Company Senior Indebtedness or Guarantor Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Section 9.5, and if such evidence is not furnished, the Trustee may defer any

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payment to such Person pending judicial determination as to the right of such Person to receive such payment.
     9.6 Reliance on Judicial Order or Certificate of Liquidating Agent.
          Upon any payment or distribution of assets of the Company or the Guarantor referred to in this Section 9, the Trustee, subject to the provisions of Section 602 of the Base Indenture, and the Holders of the Bonds shall be entitled to conclusively rely upon any order or decree entered by any court of competent jurisdiction in which a Company Proceeding or Guarantor Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of Bonds, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Company Senior Indebtedness or Guarantor Indebtedness and other Indebtedness of the Company or the Guarantor, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Section 9.
     9.7 Trustee Not Fiduciary.
          The Trustee, in its capacity as trustee under the Base Indenture, as supplemented by this Supplemental Indenture, shall not be deemed to owe any fiduciary duty to the holders of Company Senior Indebtedness or Guarantor Indebtedness, and shall not be liable to any such holders if it shall in good faith mistakenly pay over or distribute to Holders of Bonds or to the Company or the Guarantor or to any other Person cash, property or securities to which any holders of Company Senior Indebtedness or Guarantor Indebtedness shall be entitled by virtue of this Section 9 or otherwise. With respect to the holders of Company Senior Indebtedness, the Trustee undertakes to perform or observe only such of its covenants or obligations as are specifically set forth in this Section 9 and no implied covenants or obligations with respect to holders of Company Senior indebtedness shall be read into the Base Indenture, as supplemented by this Supplemental Indenture against the Trustee.
     9.8 Preservation of Trustee’s Rights.
          The Trustee in its individual capacity shall be entitled to all the rights set forth in this Section 9 with respect to any Senior Company Indebtedness and Guarantor Indebtedness which may at any time be held by it, to the same extent as any other holder of Company Senior Indebtedness or Guarantor Indebtedness, and nothing in this Supplemental Indenture shall deprive the Trustee of any of its rights as such holder.
          Nothing in this Section 9 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 606 of the Base Indenture.
     9.9 Section Applicable to Paying Agents.
          In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term “Trustee” as used in this Section 9 shall in such case (unless the context otherwise requires) be construed as extending to

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and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Section 9 in addition to or in place of the Trustee.
     9.10 Certain Conversions or Exchanges Deemed Payment.
          For purposes of this Section 9 only, (i) the issuance and delivery of junior securities upon conversion or exchange of Bonds shall not be deemed to constitute a payment or distribution on account of the principal of or interest (including any Deferred Interest or Additional Amounts) on or any make-whole or present value payment on the Bonds or pursuant to the Guarantee or on account of the purchase or other acquisition of Bonds, and (ii) the payment, issuance or delivery of cash, property or securities (other than junior securities) upon conversion or exchange of a Bond shall be deemed to constitute payment on account of the principal of such Bond. For the purposes of this Section 9.10, the term “junior securities” means (a) shares of capital stock of any class of the Company or the Guarantor and (ii) securities which are subordinated in right of payment to all Company Senior Indebtedness or Guarantor Indebtedness, as the case may be, which may be outstanding at the time of issuance or delivery of such securities to substantially the same extent as, or to a greater extent than, the Bonds and the Guarantee are so subordinated as provided in this Section 9.
10. Supplemental Indentures
     10.1 Supplemental Indentures Without Consent of Holders.
          In addition to any permitted supplement to the Indenture pursuant to Section 901 of the Base Indenture, the Company, the Guarantor and the Trustee, at any time and from time to time, may amend the Indenture or the Bonds without the consent of any Holder of the Bonds: (a) in order to comply with any requirement of the Commission in connection with the qualification of the Indenture under the Trust Indenture Act; or (b) to conform this Supplemental Indenture and the form or terms of the Bonds to the provisions in the section entitled “Description of Bonds” as set forth in the preliminary prospectus supplement dated September 15, 2010 and the related pricing term sheet, each in connection with the offering and sale of the Bonds.
     10.2 Supplemental Indentures With Consent of Holders.
          Notwithstanding Section 10.1 and in addition to the provisions of Section 902 of the Base Indenture, no supplemental indenture shall, without the consent of the Holder of each Outstanding Bond affected thereby, other than to conform this Supplemental Indenture and the form or terms of the Bonds to the section entitled “Description of Bonds” as set forth in the preliminary prospectus supplement and the pricing term sheet, each dated September 15, 2010, relating to the offering and sale of the Bonds: (a) make any change that adversely affects the conversion rights of any Bonds, (b) reduce the Fixed Conversion Rates or the Fundamental Change Conversion Rate, (c) make any change that adversely affects the obligation to pay the present value of future interest payments in certain circumstances as provided herein, (d) amend or modify in any manner adverse to the Holders the Company’s obligation to make any delivery or payment upon conversion, whether by supplemental indenture or other amendment or waiver of provisions in the covenants or definitions related to the Bonds or otherwise, or (e) make any change that adversely affects the absolute and unconditional right of Holders to institute suit for

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the enforcement of right to receive payment of the consideration deliverable upon conversion and (subject to Section 307 of the Base Indenture and Section 2.2 hereof) interest on such Bonds on the respective due dates expressed in the Bonds and this Supplemental Indenture, and to institute suit for the enforcement of any such payment, pursuant to Section 7.3 hereof.
11. Miscellaneous
     11.1 Separability of Invalid Provisions.
          In case any one or more of the provisions contained in this Supplemental Indenture should be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions contained in this Supplemental Indenture, and to the extent and only to the extent that any such provision is invalid, illegal or unenforceable, this Supplemental Indenture shall be construed as if such provision had never been contained herein.
     11.2 Execution in Counterparts.
          This Supplemental Indenture may be simultaneously executed and delivered in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original, and such counterparts shall together constitute but one and the same instrument.
11. The Trustee
          (a) The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made solely by the Company and the Guarantor.
          (b) Except for calculations of regular payments of interest on Interest Payment Dates, which shall be made by the Trustee, all calculations under this Supplemental Indenture shall be made by the Company or its agent and shall be made to the nearest cent or to the nearest one hundredth of a share, as the case may be. The Company or its agent will be responsible for making all other calculations and determinations called for under this Supplemental Indenture. The Company or its agent will make these calculations and determinations in good faith, and, absent manifest error, such calculations and determinations will be final and binding on the Holders, and the Trustee shall have no responsibility with respect thereto. The Company will provide a schedule of these calculations and determinations to the Trustee and the Trustee shall be entitled to rely conclusively upon the accuracy of these calculations without independent verification thereof.
          (c) The Trustee shall not at any time be under any duty or responsibility to any Holder of Bonds to determine whether any facts exist that may require any adjustment of the Fixed Conversion Rates, or with respect to the nature or intent of any such adjustments when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee shall not be accountable with respect to the validity or value (of the kind or amount) of any securities or property, that may at any time be issued or delivered upon the conversion of any Bond; and it does not make any representation with respect thereto. The Trustee shall not be responsible for any failure of the Company or the

46

 

Guarantor to make any cash payment or to issue, transfer or deliver any ordinary shares or share certificates or other securities or property upon the surrender of any Bond for the purpose of conversion; and the Trustee shall not be responsible or liable for any failure of the Company or the Guarantor to comply with any of the covenants of the Company or the Guarantor contained in this Supplemental Indenture. The Trustee shall be fully protected in relying upon the Officers’ Certificate furnished pursuant to this Supplemental Indenture.
12. Conversion Agent
     12.1 Appointment of Conversion Agent
          The Company initially appoints the Trustee as Conversion Agent. The Company may terminate the appointment of any Conversion Agent or appoint additional or other Conversion Agents.
     12.2 Trustee’s Disclaimer.
          The Trustee (including in its capacity as Conversion Agent) has no duty to determine when an adjustment to the conversion rate under Section 3 hereof should be made, how it should be made or what it should be. The Trustee makes no representation as to the validity or value of any securities or assets issued upon conversion of the Bonds. The Trustee shall not be responsible for the Company’s failure to comply with Section 3 hereof or its failure to make any calculations under this Supplemental Indenture.
[signature page follows]

47

 

          In witness whereof, each of the parties hereto has caused this First Supplemental Indenture to be duly executed on its behalf, all as of the day and year first written above.
         
  ANGLOGOLD ASHANTI HOLDINGS FINANCE PLC
 		  
  By:      
    Name:      
    Title:      
 
  ANGLOGOLD ASHANTI LIMITED
 		  
  By:      
    Name:      
    Title:      
 
     
  By:      
    Name:      
    Title:      
 
  THE BANK OF NEW YORK MELLON, as Trustee
 		  
  By:      
    Name:      
    Title:      
 
Signature Page to First Supplemental Indenture

 

 

EXHIBIT A
[INCLUDE IF BOND IS A GLOBAL BOND: THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE BASE 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 BASE INDENTURE.]
Form of Bond
ANGLOGOLD ASHANTI HOLDINGS FINANCE PLC
6.00% Mandatory Convertible Subordinated Bonds due 2013
Guaranteed By
ANGLOGOLD ASHANTI LIMITED
No. [    ]   US$[    ]
    CUSIP No. [    ]
    ISIN No. [    ]
          ANGLOGOLD ASHANTI HOLDINGS FINANCE PLC, a company organized under the laws of the Isle of Man (herein called the “Company”, which term includes any successor Person under the Indenture (as defined below) hereinafter referred to), for value received, hereby promises to deliver to the Holders of the Bonds, with respect to each US$50.00 principal amount, on the Stated Maturity Date (as defined in the Supplemental Indenture hereinafter referred to), unless converted prior to September 15, 2013 as provided in the Supplemental Indenture, a number of American Depositary Shares (“ADSs”) each representing one ordinary share of ANGLOGOLD ASHANTI LIMITED (herein called the “Guarantor” which term includes any successor Person under the Indenture hereinafter referred to) at the conversion rate described in the Supplemental Indenture (or, in certain limited circumstances, the cash value thereof), and to pay interest on the principal amount hereof from September 22, 2010 or from the most recent Interest Payment Date (as defined below) to which interest has been paid or duly provided for, as the case may be, quarterly in arrears on March 15, June 15, September 15 and December 15 in each year, commencing December 15, 2010 (each, an “Interest Payment Date”), at the rate of 6.00% per annum, until principal hereof is satisfied in the manner provided herein. 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 Bond is registered at the close of business on March 1, June 1, September 1 and December 1, each, a “Regular Record Date” for such interest. The Company may at its sole discretion elect to defer any interest to be paid on any of the Interest Payment Dates, and may extend any period in which any interest payment has been so deferred (a “Deferral Period”) at any time or from time to time, provided that (i) the Company is not then in default in payment of

A-1

 

interest at the time deferral is elected, (ii) notice is given as provided in the Indenture (as defined on the reverse hereof), (iii) Deferral Periods shall end no later than the Stated Maturity Date, and (iv) any Deferral Period shall end on an Interest Payment Date. During any Deferral Period interest shall continue to accrue, and at the end of a Deferral Period the Company shall pay all Deferred Interest then accrued and unpaid, together with interest on the accrued and unpaid Deferred Interest, to the extent permitted by applicable law, at a rate equal to 6.00% calculated on the basis of a 360-day year of twelve 30-day months.
          Payment of interest (including any Deferred Interest and Additional Amounts) and any make-whole or present value payments payable in cash on this Bond will be made at the office or agency of the Company maintained for that purpose in New York City, 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 Bond 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 Authentication Agent by manual signature of an authorized signatory, this Bond shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

A-2

 

          IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed manually or in facsimile.
Dated: September 22, 2010
         
  ANGLOGOLD ASHANTI HOLDINGS FINANCE PLC
 		  
  By:      
    Name:      
    Title:      
     
  By:      
    Name:      
    Title:      
 
Signature Page to Global Note

 

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION
Dated: September 22, 2010
          This is one of the Bonds of the series designated therein referred to in the within mentioned Indenture.
         
  THE BANK OF NEW YORK MELLON, as Trustee
 		  
  By      
    Authorized Signatory   
       
 
Signature Page to Global Note

 

 

FORM OF GUARANTEE
          For value received, ANGLOGOLD ASHANTI LIMITED, a corporation duly organized and existing under the laws of South Africa (herein called the “Guarantor”, which term includes any successor Person under the Base Indenture (the “Base Indenture”), as supplemented by the Supplemental Indenture (the “Supplemental Indenture” and, as so supplemented, the “Indenture”) referred to in the Bond on which this Guarantee is endorsed), has unconditionally guaranteed, pursuant to the terms of the Guarantee contained in the Base Indenture, the performance and full and punctual payment of the Company’s obligations under the Indenture and the Bonds, whether for delivery of ADSs subject to the Shareholder Conversion Approval (as defined in the Supplemental Indenture), or the cash value thereof upon conversion or payment of interest or any of the amounts that may become due and payable in respect of the Bonds.
          All payments pursuant to this Guarantee shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by or on behalf of the Isle of Man or South Africa or the jurisdiction of organization, tax residence or place of business of the Company, the Guarantor or any successor to the Company or the Guarantor, or any political subdivision or taxing authority thereof or therein, unless such taxes, duties, assessments or governmental charges are required by the Isle of Man or South Africa or such other jurisdiction or any such subdivision or authority to be withheld or deducted. In that event, the Guarantor will pay such Additional Amounts as will result (after deduction of such taxes, duties, assessments or governmental charges and any additional taxes, duties, assessments or governmental charges payable in respect of such) in the payment to the Holder of the Bond on which this Guarantee is endorsed of the amounts which would have been payable in respect of the Guarantee thereof had no such withholding or deduction been required, subject to certain exceptions as set forth in Article Ten of the Base Indenture.
          The Guarantee will be the Guarantor’s general, unsecured and subordinated obligation and will be subordinated to all of the Guarantor’s existing and future Indebtedness, as provided in Section 9.2 of the Supplemental Indenture.
          The obligations of the Guarantor to the Holders of the Bonds and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article Sixteen of the Base Indenture as modified by Section 6.6 of the Supplemental Indenture, and reference is hereby made to such Base Indenture and the Supplemental Indenture provisions for the precise terms of the Guarantee.
          In the event of any inconsistency between the terms of this Guarantee and the provisions of the Indenture, the Indenture shall control.
          The Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Bond upon which this Guarantee is endorsed shall have been executed by the Trustee under the Indenture by the manual signature of one of its authorized signatories.
          The Guarantee shall be governed by and construed in accordance with the laws of the State of New York.

A-5

 

          Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Indenture.

 

 

          IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed.
         
  Dated:

ANGLOGOLD ASHANTI LIMITED
 		  
  By:      
    Name:      
    Title      
     
  By:      
    Name:      
    Title      

 

 

         
REVERSE OF GLOBAL BOND
          This Bond is one of a duly authorized issue of securities of the Company (herein called the “Bond”), issued and to be issued in one or more series under an Indenture (the “Base Indenture”), dated as of September 22, 2010, among the Company, AngloGold Ashanti Limited, as Guarantor (herein called the “Guarantor”, which term includes any successor Person under the Indenture) and The Bank of New York Mellon, as Trustee (herein called the “Trustee”, which term includes any other successor trustee under the Indenture), as supplemented by the First Supplemental Indenture (the “Supplemental Indenture” and, as so supplemented, the “Indenture”) dated as of September 22, 2010 among the Company, the Guarantor and the Trustee. This Bond is one of the series designated on the face hereof, initially limited in aggregate principal amount to U.S.$789,086,750.
          The Company may, without the consent of the Holders of the Bonds of any series, issue additional bonds of one or more series having the same ranking and same interest rate, maturity date, conversion terms and other terms as the Bonds except for the price to the public and issue date. Any additional bonds, together with the Bonds, will constitute a single series of securities under the Indenture. There is no limitation on the amount of the Bonds or other debt securities that the Company may issue under the Indenture.
          The Bonds will be general, unsecured and subordinated obligations of the Company, subordinated in right of payment to all of the existing and future Company Senior Indebtedness and ranking senior to all of the Company’s existing and future share capital, as provided in Section 9.1 of the Supplemental Indenture.
          The Bonds of this series are issuable only in registered form without coupons in minimum denominations of US$50 and integral multiples of US$50 in excess thereof. The Bonds will initially be issued in the form of one or more global Bonds (each, a “Global Bond”). Except as provided in the Indenture, a Global Bond shall not be exchangeable for one or more definitive Bonds.
          If an Event of Default with respect to Bonds of this series occurs and is continuing, the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Bonds of this series may declare the principal of all of the Bonds of this series to be due and payable in the manner and with the effect provided in the Indenture.
          References herein to the payment of the principal of or interest (including Deferred Interest) on or any make-whole or present value payment in respect of, any Bond of this series (or any payments pursuant to the Guarantee thereof) shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions herein and express mention of the payment of Additional Amounts in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.

 

 

          The Bonds shall, subject to certain conditions set forth in the Supplemental Indenture, automatically convert on the Stated Maturity Date into a number of Guarantor’s ADSs determined as provided in Section 2.3(b) of the Supplemental Indenture, subject to full or partial cash settlement pursuant to Section 5 of the Supplemental Indenture. In addition to the ADSs issuable upon conversion of the Bond, Holders of Bonds will have the right to receive on the Stated Maturity Date an amount in cash equal to all accrued and unpaid interest on the Bonds (including Deferred Interest) to, but excluding, September 15, 2013.
          Holders of the Bonds shall have the right to convert their Bonds, in whole or in part, at any time from the Optional Conversion Commencement Date until the 25th Scheduled Trading Day immediately preceding September 15, 2013 at the Minimum Conversion Rate subject to certain conditions set forth in the Indenture. In addition to the number of ADSs issuable upon conversion, a Holder who elects to convert Bonds early shall have the right to receive an amount equal to any Deferred Interest to, but excluding, the Interest Payment Date preceding the date of conversion.
          The Company shall have the right to convert the Bonds at its option, in whole but not in part, at any time after the Approval Date and on or before the 25th Scheduled Trading Day immediately preceding September 15, 2013 upon not less than 20 Trading Days’ nor more than 30 Trading Days’ prior notice to the Holders of the Bonds at the Maximum Conversion Rate plus accrued and unpaid interest (including Deferred Interest) to, but excluding, the date of conversion plus the present value of all remaining interest payments determined as provided in the Supplemental Indenture.
          If a Fundamental Change occurs at any time after the initial issuance of the Bonds up to, and including, the 25th Scheduled Trading Day immediately preceding September 15, 2013, then, regardless whether Shareholder Conversion Approval has been obtained, but subject to certain conditions set forth in the Supplemental Indenture, Holders of the Bonds shall be permitted to convert their Bonds, in whole or in part, at any time during the period beginning on the Effective Date of such Fundamental Change and ending on, but excluding, the earlier of September 15, 2013 and the date that is 20 Business Days after the Effective Date of such Fundamental Change at the Fundamental Change Conversion Rate, plus an amount payable in cash equal to accrued and unpaid interest (including Deferred Interest) to, but excluding, the date of conversion, and the present value of all remaining interest payments on the Bonds determined as provided in the Supplemental Indenture.
          If the principal amount of the Bonds is declared due and payable pursuant to Section 502 of the Base Indenture, then, to the extent permitted by applicable law, the Bonds will automatically convert into ADSs at the Maximum Conversion Rate, and the Holders thereof shall be entitled to receive all accrued and unpaid interest (including any Deferred Interest) to, but excluding, the date of acceleration and the present value of all remaining interest payments on the Bonds determined as provided in the Supplemental Indenture.
          The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company or the Guarantor and the rights of the Holders of the Bonds of each series to be affected under the

A-2

 

Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Bonds 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 Bonds of each series at the time Outstanding, on behalf of the Holders of all Bonds of such series to waive compliance by the Company or the Guarantor 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 Bond shall be conclusive and binding upon such Holder and upon all future Holders of this Bond and of any Bond 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 Bond.
          Prior to due presentation of this Bond for registration of transfer, the Company, the Guarantor, the Trustee, and any agent of the Company or the Guarantor or the Trustee may treat the Person in whose name this Bond is registered as the owner hereof for all purposes, whether or not this Bond be overdue, and none of the Company, the Guarantor, the Trustee, or any such agent shall be affected by notice to the contrary. None of the Company, the Guarantor, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Bond in global form or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. Nothing shall prevent the Company, the Guarantor, the Trustee from giving effect to any written certification, proxy or other authorization furnished by any depositary, as a Holder, with respect to such Global Bond or impair, as between such depositary and owners of beneficial interests in such Global Bond, the operation of customary practices governing the exercise of the rights of such depositary (or its nominee) as Holder of such Global Bond.
          This Bond shall be governed by and construed in accordance with the laws of the State of New York.
          Unless otherwise defined herein, all terms used in this Bond which are defined in the Indenture shall have the meanings assigned to them in the Indenture. To the extent any provision of this Bond conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.

A-3

 

SCHEDULE OF PRINCIPAL AMOUNT
          The initial principal amount of this Bond shall be US$[                    ]. The following decreases/increases in the principal amount of this Bond have been made:
                 
            Total Principal    
            Amount Following   Notation Made by or
Date of   Decrease in   Increase in   such   on Behalf of
Decrease/Increase   Principal Amount   Principal Amount   Decrease/Increase   Trustee
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
                 
 
                 
 
                 

A-4

 

Exhibit B
FORM OF OPTIONAL EARLY CONVERSION NOTICE
AngloGold Ashanti Holdings Finance plc
The Bank of New York Mellon
Re: 6.00% Mandatory Convertible Subordinated Bonds due 2013
CONVERSION NOTICE (CUSIP [  ])
Reference is hereby made to the Indenture, dated as of September 22, 2010 (the “Base Indenture”), between AngloGold Ashanti Holdings Finance plc, as issuer (the “Company”), AngloGold Ashanti Limited (the “Guarantor”) and The Bank of New York Mellon, as trustee (the “Trustee”), as supplemented by the First Supplemental Indenture (the “Supplemental Indenture” and, as so supplemented, the “Indenture”). Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
_____________ (the “Owner”) owns and proposes to convert the Bond[s] or interest in such Bond[s] specified herein, in the principal amount of US$______ in such Bond[s] or interests (the “Optional Early Conversion”) pursuant to Section 2.4 or Section 2.6 of the Supplemental Indenture. In connection with the Optional Early Conversion, the Owner hereby certifies that, as Owner of this Bond, he/she hereby irrevocably exercises the option to convert this Bond, or such portion of this Bond in the principal amount designated above, into the number of ADSs of the Guarantor at the Minimum Conversion Rate, in the case of conversion pursuant to Section 2.4, or the Fundamental Change Conversion Rate, in the case of conversion pursuant to Section 2.6, in effect on the date of conversion. The Owner directs that such ADSs (if any), together with a check in payment for any cash deliverable pursuant to the automatic cash settlement or cash true-up provisions set forth in Section 5 of the Supplemental Indenture, any fractional shares, accrued and unpaid interest (including Deferred Interest), if any, and, in the case of conversion pursuant to Section 2.6, the present value of all remaining interest payments, and any Bonds representing any unconverted principal amount hereof, be delivered to and be registered in the name of the undersigned unless a different name has been indicated below. If ADSs are to be registered in the name of a Person other than the undersigned, (a) the undersigned will pay all transfer taxes payable with respect thereto and (b) signature(s) must be guaranteed by an eligible guarantor institution with membership in an approved signature guarantee program pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934. Any amount required to be paid by the undersigned on account of interest accompanies this Bonds.
Dated: _______________________
         
     
     
  Signature(s)   
     

 

 

If ADSs or Bonds are to be registered in the name of a Person other than the Holder, please print such Person’s name and address:
___________________________
(Name)
___________________________
(Address)
Social Security or other Identification Number, if any.
[Signature Guaranteed]
If only a portion of a Definitive Bond is to be converted, please indicate:
1. Principal amount to be converted: US$_______________________
2. Principal amount and denomination of Bonds representing unpurchased principal amount to be issued:
Amount: US$________________          Denominations: US$_______________
(US$50 or any integral multiple of US$50 in excess thereof, provided that the unconverted portion of such principal amount is US$50 or any integral multiple of US$50 in excess thereof.)

B-2

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