-----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, O7LOO0W3IQV8i1F6ajDXynLySrPy8bWTwJDClm268QpJXy2gy9In26SHBE6i8Jxv x/sf+9QDvuaf4DSQ8XcQng== 0000950130-99-003977.txt : 19990713 0000950130-99-003977.hdr.sgml : 19990713 ACCESSION NUMBER: 0000950130-99-003977 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 13 REFERENCES 429: 033-54249 REFERENCES 429: 333-59141 FILED AS OF DATE: 19990712 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEWMONT MINING CORP CENTRAL INDEX KEY: 0000071824 STANDARD INDUSTRIAL CLASSIFICATION: GOLD & SILVER ORES [1040] IRS NUMBER: 131806811 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-82671 FILM NUMBER: 99662851 BUSINESS ADDRESS: STREET 1: ONE UNITED BANK CTR STREET 2: 1700 LINCOLN ST CITY: DENVER STATE: CO ZIP: 80203 BUSINESS PHONE: 3038637414 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEWMONT GOLD CO CENTRAL INDEX KEY: 0000793308 STANDARD INDUSTRIAL CLASSIFICATION: GOLD & SILVER ORES [1040] IRS NUMBER: 132526632 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-82671-01 FILM NUMBER: 99662852 BUSINESS ADDRESS: STREET 1: 1700 LINCOLN ST STREET 2: 1 UNITED BANK CTR 28TH FLOOR CITY: DENVER STATE: CO ZIP: 80203 BUSINESS PHONE: 3038637414 MAIL ADDRESS: STREET 1: 1700 LINCOLN STREET STREET 2: 28TH FLOOR CITY: DENVER STATE: CO ZIP: 80203 S-3 1 REGISTRATION STATEMENT Registration No. 333- As filed with the Securities and Exchange Commission on July 12, 1999 ============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ________________
NEWMONT MINING CORPORATION NEWMONT GOLD COMPANY (Exact name of Registrant as specified in its charter) (Exact name of Registrant as specified in its charter) Delaware Delaware (State or other jurisdiction of (State or other jurisdiction of incorporation or organization) incorporation or organization) 13-1806811 13-2526632 (I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.) 1700 Lincoln Street 1700 Lincoln Street Denver, Colorado 80203 Denver, Colorado 80203 (303) 863-7414 (303) 863-7414 (Address, including zip code, and telephone number, (Address, including zip code, and telephone number, including area code, of Registrant's principal including area code, of Registrant's principal executive offices) executive offices)
Timothy J. Schmitt, Esq. Newmont Mining Corporation 1700 Lincoln Street Denver, Colorado 80203 (303) 863-7414 (Name, address, including zip code, and telephone number, including area code, of agent for service) Copies to Maureen Brundage, Esq. White & Case LLP 1155 Avenue of the Americas New York, New York 10036 (212) 819-820 _____________ Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [_] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [_] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [_]
CALCULATION OF REGISTRATION FEE ================================================================================================================================= Proposed maximum Proposed maximum Title of each class of Amount to be offering price aggregate offering Amount of Securities to be registered registered (1) per unit (1) price (1) registration fee - --------------------------------------------------------------------------------------------------------------------------------- Common Stock (2)............................ Preferred Stock (3).......................... Warrants for Common Stock (4)................ Guaranteed Senior Debt Securities (5)........ Guaranteed Subordinated Debt Securities (6).. Guarantees of Guaranteed Senior Debt Securities (5)........................... Guarantees of Guaranteed Subordinated Debt Securities (6)...................... Warrants for Guaranteed Debt Securities (7). Total.................................. US$100,030,000 (8) 100% US$100,030,000 (8) US$27,809 ===================================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457 under the Securities Act of 1933, as amended. (2) Subject to note (8) below, there is being registered hereunder an indeterminate number of shares of common stock of the Newmont Mining Corporation ("NMC") as may be issued from time to time at indeterminate prices, including shares issuable upon conversion of (i) debt securities that are convertible into common stock or (ii) preferred stock that is convertible into common stock. (3) Subject to note (8) below, there is being registered hereunder an indeterminate number of shares of preferred stock of NMC as may be issued from time to time at indeterminate prices. Such shares of preferred stock may be convertible into shares of common stock of NMC. (4) Subject to note (8) below, there is being registered hereunder an indeterminate number of warrants of NMC as may be issued from time to time at indeterminate prices entitling the holder to purchase shares of common stock of NMC. (5) Subject to note (8) below, there is being registered hereunder an indeterminate principal amount of guaranteed senior debt securities of NMC and related guarantees thereof of Newmont Gold Company as may be issued from time to time at indeterminate prices. Such guaranteed senior debt securities may be convertible into shares of common stock of NMC. (6) Subject to note (8) below, there is being registered hereunder an indeterminate principal amount of guaranteed subordinated debt securities of NMC and related guarantees thereof of Newmont Gold Company as may be issued from time to time at indeterminate prices. Such guaranteed subordinated debt securities may be convertible into shares of common stock of NMC. (7) Subject to note (8) below, there is being registered hereunder an indeterminate number of warrants of NMC as may be issued from time to time at indeterminate prices entitling the holder to purchase guaranteed senior debt securities and/or guaranteed subordinated debt securities of NMC. (8) In no event will the aggregate offering price of all securities issued from time to time under this registration statement and NMC's Registration Statements on Form S-3 (Nos. 33-54249 and 333-59141) exceed U.S.$500,000,000 or the equivalent thereof in one or more foreign currencies, foreign currency units or composite currencies. Pursuant to Rule 429 under the Securities Act of 1933, the prospectus included in this registration statement also relates to $399,970,000 maximum aggregate offering price of Common Stock, Preferred Stock, Depositary Shares and Common Stock Warrants previously registered under NMC's Registration Statements on Form S-3 (Registration Nos. 33-54249 and 333-59141). This Registration Statement constitutes Post-Effective Amendment No. 3 to NMC's Registration Statement on Form S-3 (Registration No. 33-54249) and Post-Effective Amendment No. 1 to NMC's Registration Statement on Form S-3 (Registration No. 333-59141). The Registrants hereby amend this registration statement on such date or dates as may be necessary to delay its effective date until the Registrants shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. ============================================================================== Prospectus NEWMONT MINING CORPORATION NEWMONT GOLD COMPANY Newmont Mining may offer by this prospectus the following securities for sale: . Common Stock . Preferred Stock . Warrants to purchase Common Stock . Senior Debt Securities guaranteed by its wholly owned subsidiary Newmont Gold, . Subordinated Debt Securities guaranteed by Newmont Gold . Warrants to purchase Debt Securities We will provide the specific terms of the securities that we are offering in supplements to this prospectus. You should read this prospectus and any supplement carefully before you invest. Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the securities that may be offered by this prospectus or have determined that this prospectus is truthful or complete. Any representation to the contrary is a criminal offense. This prospectus is dated , 1999. TABLE OF CONTENTS About This Prospectus............................................... 1 Newmont Mining...................................................... 1 Use of Proceeds..................................................... 1 Ratios of Earnings to Fixed Charges and Preferred Stock Dividends......................................... 2 Description of Newmong Mining Capital Stock..................................................... 3 Description of Newmont Mining Common Stock...................................................... 3 Description of Newmont Mining Preferred Stock................................................... 6 Description of Newmont Mining Common Stock Warrants............................................. 7 Description of Newmont Mining Debt Securities and Newmont Gold Guarantees........................................................ 9 Description of Newmont Mining Debt Security Warrants................................................. 23 U.S. Federal Income Tax Considerations as a Real Property Holding Corporation............................................... 25 Plan of Distribution................................................ 25 Legal Opinion....................................................... 26 Experts............................................................. 26 Where You Can Find More Information................................. 26 ABOUT THIS PROSPECTUS This prospectus is part of a registration statement that we filed with the SEC utilizing a "shelf" registration process. The shelf process allows us to sell any combination of the securities described in this prospectus in one or more offerings up to a total dollar amount of $500 million. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement with specific information about the terms of the securities. The prospectus supplement may also update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with the additional information described under the heading WHERE YOU CAN FIND MORE INFORMATION. NEWMONT MINING Newmont Mining was incorporated in 1921 under the laws of Delaware. Newmont Gold, our wholly-owned subsidiary, was incorporated in 1965 under the laws of Delaware. Newmont Mining is engaged, directly or indirectly through Newmont Gold and its subsidiaries and affiliates, in the production of gold, the development of mining properties, the exploration for gold and the acquisition of such properties worldwide. Newmont Mining produces gold from operations in Nevada, California, Peru, Indonesia and the Central Asian Republic of Uzbekistan. Newmont Mining's right and the ability of holders of its securities to participate in any distribution of assets of Newmont Gold upon its liquidation or reorganization are subject to the prior claims of creditors of Newmont Gold. Such claims may include claims by holders of debt of Newmont Gold and claims by creditors in the ordinary course of business. Newmont Mining's principal executive offices and Newmont Gold's principal executive offices are located at 1700 Lincoln Street, Denver, Colorado 80203. Our telephone number is (303) 863-7414. USE OF PROCEEDS Unless we state otherwise in a prospectus supplement, the net proceeds from the sale of any securities will be used for general corporate purposes including the repayment of debt, acquisitions, additions to working capital and capital expenditures. RATIOS OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS The following table contains ratios of earnings to fixed charges for Newmont Mining for the periods indicated. Quarter ended Year ended December 31, - ------------------ ---------------------------------------------------- March 31, 1999 1998 1997 1996 1995 1994 - ------------------ --------- --------- ---------- ---------- ---------- 2.0 (4.0)/1/ 2.3 1.7 3.6 3.3 The following table contains ratios of earnings to fixed charges and preferred stock dividends for Newmont Mining for the periods indicated. Quarter ended Year ended December 31, - ------------------ ---------------------------------------------------- March 31, 1999 1998 1997 1996 1995 1994 - ------------------ --------- --------- ----------- -------- ---------- 2.0 (4.0)/1/ 2.3 1.7 2.9 2.3 For the purposes of these tables, fixed charges are calculated by adding the following: . interest expensed and capitalized, . amortized premiums, discounts and capitalized expenses related to indebtedness, . an estimate of the interest within rental expense and . preferred stock dividend requirements of consolidated subsidiaries, if any. For purposes of these tables, earnings are calculated by adding: . pre-tax income from continuing operations before adjustment for minority interests in consolidated subsidiaries or income or loss from equity investees, . fixed charges, . amortization of capitalized interest, . distributed income of equity investees and . our share of pre-tax losses of equity investees for which charges arising from guarantees are included in fixed charges and then subtracting: . capitalized interest, . preferred stock dividend requirements of consolidated subsidiaries, if any, and . minority interests in pre-tax income of subsidiaries that have not incurred fixed charges. The term "equity investees" means investments that we account for using the equity method of accounting. The term "preferred stock dividend" means the amount of pre-tax _______________________ /1/ Earnings in 1998 were inadequate to cover fixed charges, with a deficiency of $480 million, as a result of an asset write-down in the fourth quarter of 1998. -2- earnings that is required to pay the dividends on outstanding preferred stock. DESCRIPTION OF NEWMONT MINING CAPITAL STOCK As of June 30, 1999, we had 255,000,000 shares of authorized capital stock. Those shares consisted of: . 5,000,000 shares of preferred stock, none of which were outstanding; and . 250,000,000 shares of common stock, of which 167,452,731 shares were outstanding. DESCRIPTION OF NEWMONT MINING COMMON STOCK Listing Our common stock is listed on the New York Stock Exchange under the symbol "NEM" and on the Paris Bourse, the Brussels Stock Exchange and the Swiss Stock Exchange. Dividends The owners of common stock may receive dividends when declared by the board of directors. Subject to the terms of any outstanding preferred stock, owners of common stock may not receive dividends until we have satisfied our obligations to any holders of such preferred stock. Voting Rights Each share of common stock is entitled to one vote in the election of directors and other matters. There is no cumulative voting. By-Laws Our board of directors may adopt, amend or repeal our by-laws subject to Delaware law and our certificate of incorporation. The board's power to change our by-laws is also subject to the power of stockholders to do the same. Liquidation Rights If we liquidate, dissolve or wind-up our business, whether voluntarily or not, common stockholders will share equally in the distribution of all assets remaining after we pay creditors and preferred stockholders. Redemption The common stock is not redeemable or convertible. Anti-Takeover Provisions Article NINTH of our restated certificate of incorporation and our stockholder rights plan may make it more difficult for certain corporations, entities or persons to acquire control of us or to remove management. Approval of Certain Mergers, Consolidations, Sales and Leases Article NINTH of our restated certificate of incorporation requires us to get the approval of 80% of our stockholders who are entitled to vote in elections of directors to enter the following types of transactions: . a merger or consolidation between us and another corporation that holds 10% of our outstanding shares; . the sale or lease of all or a substantial part of our assets to another corporation or entity that -3- holds 10% of our outstanding shares; or . any sale or lease to us of assets worth more than $10 million in exchange for our securities by another corporation or entity who holds 10% of our outstanding shares. However, Article NINTH does not apply to any transaction if . the board of directors has approved the transaction before the other corporation, person or entity has become a holder of 10% of our outstanding shares or . if we or our subsidiaries own a majority of the outstanding voting shares of the other corporation. Article NINTH can only be altered or repealed with the approval of 80% of our stockholders. Stockholder Rights Plan Each outstanding share of our common stock carries with it one preferred share purchase right. The terms of the rights are explained in a Rights Agreement, dated as of August 30, 1990, between us and The Chase Manhattan Bank, as Rights Agent. The following summary of the Rights Agreement is not complete and is subject to the Rights Agreement. The Rights Agreement has been filed as an exhibit to our registration statement on Form S-3. You should read the Rights Agreement. Under the Rights Agreement, a distribution date is the earlier of . ten business days after the date of a public announcement that a person or group of affiliated or associated persons, has acquired, or obtained the right to acquire, 15% or more of our outstanding common stock; or . ten business days after the date of the commencement of a tender offer or exchange offer that would result in a person or entity owning 15% or more of our outstanding common stock. Before a distribution date, the rights are transferred automatically with the transfer of any outstanding common stock certificates. On a distribution date, the rights will separate from the common stock. Generally, after a distribution date, each right allows the registered holder to purchase directly from us one five-hundredth of a share of our junior preferred stock. The purchase price for each fraction is $150, subject to adjustment. The rights will expire at the close of business on September 11, 2000, or earlier, if . redeemed by us; or . a merger or consolidation transaction is completed following a tender offer or exchange offer in which all holders of our common stock received in the merger or consolidation the same form of consideration, and in an amount not less than that was paid in the tender offer or exchange offer. Each one-five hundredth of a share of a junior preferred stock carries voting and dividend rights that are intended to be -4- equivalent to one share of common stock. These rights would be subject to adjustment in the event of stock dividends, subdivisions and combinations with respect to our common stock. Under the Rights Agreement, we may pay cash instead of issuing certificates for fractions, other than fractions which are integral multiples of one five-hundredth of a share. If a person or entity acquires 15% or more of the outstanding common stock through a tender or exchange offer without certain approvals of our board of directors, each holder of a right would have the right to receive common stock, cash, property, or other securities of ours having a value equal to two times the purchase price of the right. In lieu of requiring payment of the purchase price upon exercise of the right, we may provide that each right be exchanged for one share of common stock, cash, property or other securities. Under certain circumstances as specified in the Rights Agreement, all rights that are or were owned by any person or entity who acquired 15% or more of the common stock will be null and void. Each holder of a valid right has the right to receive upon exercise common stock of the acquiring company having a value equal to two times the purchase price of the right if: . we are acquired in a merger or other business combination in which we are not the surviving corporation other than pursuant to certain board approved tender or exchange offers; . we are the surviving corporation of a consolidation or merger in which any part of our outstanding common stock is changed into or exchanged for stock or other securities of another corporation or cash or any other property; or . 50% or more of our assets or earning power is sold or transferred. The purchase price payable and the number of fractions of our junior preferred stock or other securities or property issuable upon exercise of the rights is subject to adjustment to prevent dilution as a result of certain events described in the Rights Agreement. Until a right is exercised, the holder of a right has no rights as a stockholder. At any time until the earlier of . the date of public announcement that a person has acquired 15% or more of our outstanding stock; and . the close of business on September 11, 2000 we have the option to redeem the rights in whole, but not in part, at a price of $0.01 per right, subject to adjustment. In some circumstances, we may redeem the rights only with approval of the directors specified in the Rights Agreement. Before the distribution date, we may supplement or amend the Rights Agreement without the approval of any common stockholder. From and after the distribution date, we may supplement or amend the Rights Agreement without the approval of any holders of rights under limited circumstances. The following terms, however, may not be changed: . the redemption price, -5- . the final expiration date, . the purchase price or . the number of fractions of junior preferred stock for which a right is exercisable. The rights have certain anti-takeover effects. The rights may cause substantial dilution of ownership interests to a person or group that attempts to acquire us without conditioning the offer on the rights being redeemed or a substantial number of rights being acquired. The rights should not interfere with any merger or other business combination approved by our board of directors because the rights are either redeemable or are not exercisable or do not go into effect under those circumstances. DESCRIPTION OF NEWMONT MINING PREFERRED STOCK We have summarized below certain provisions relating to our preferred stock and our junior preferred stock. The summary is not complete and is subject to our restated certificate of incorporation and the certificate of designations for our junior preferred stock. A form of certificate of designations for the junior preferred stock is an exhibit to the Rights Agreement. The Rights Agreement and our restated certificate of incorporation have been included as an exhibit to our registration statement on Form S-3. You should read both the restated certificate of incorporation and the certificate of designation for junior preferred stock. General Our restated certificate of incorporation authorizes us to issue 5,000,000 shares of preferred stock and it is issuable in series. Our board of directors has the power to fix various terms for each series of preferred stock, including the following: . voting powers, . designations, . preferences, . the relative participating and optional or other rights, . qualifications and . limitations and restrictions. Junior Preferred Stock Currently, the only authorized series of preferred stock is the junior preferred stock described below. General Under the Rights Agreement, a total of 500,000 shares of junior preferred stock may be issued upon exercise of the rights. Dividend Rights Each share of junior preferred stock has a preferential quarterly dividend payable on the first day of January, April, July and October of each year or on another quarterly payment date specified by our board of directors. Each payment will be 500 times the cash dividend declared on each share of common stock, but in no event less than $1.00. Voting Rights Each share of junior preferred stock will have 500 votes on all matters submitted to a vote of our stockholders. These voting rights are subject to adjustment as provided in the certificate of designations for the -6- junior preferred stock. Generally, the holders of junior preferred stock will vote together as one class unless the certificate of designations for the junior preferred stock, the restated certificate of incorporation or the law states differently. Liquidation Rights In the event of a voluntary or involuntary liquidation, dissolution or wind up of our company, the holders of junior preferred stock will receive a preferred liquidation payment equal to the greater of . $500 per share plus accrued dividends to the date of distribution, whether or not earned or declared or . 500 times the aggregate payment made to each share of common stock. Either payment option will be subject to adjustment as provided in the certificate of designations for the shares of junior preferred stock. Effect of Mergers, Consolidations, Sales and Leases If we merge, consolidate, combine or enter into other transactions in which our common stock is exchanged for or changed into other stock or security, cash or any other property, each share of junior preferred stock will be similarly exchanged or changed in an amount equal to 500 times the aggregate amount and type of consideration received for each share of common stock. This payment will be subject to adjustment as provided in the certificate of designations for the shares of junior preferred stock. Ranking of Junior Preferred Stock The shares of junior preferred stock rank junior to all other series of our preferred stock as to the payment of dividends and the distribution of assets, unless the terms of any series states otherwise. DESCRIPTION OF NEWMONT MINING COMMON STOCK WARRANTS We may issue warrants for the purchase of common stock. The warrants may be issued independently or together with any securities offered by any prospectus supplement. The warrants will be issued under one or more common stock warrant agreements between us and a bank or trust company as common stock warrant agent. The common stock warrant agent will be our agent and will not assume any obligations to any owner of the warrants. We have summarized below certain provisions of the separate common stock warrant agreements. The summary is not complete, and is subject to the common stock warrant agreement. A form of the common stock warrant agreement has been filed as an exhibit to our registration statement on Form S-3. You should read this form of common stock warrant agreement. General Under the common stock warrant agreement, warrants may be issued in one or more series. The prospectus supplement and the common stock warrant agreement relating to any series of warrants will include specific terms about the warrants. These terms include some of the following: . the type and number of warrants, . the amount of related common -7- stock for which the warrant can be exercised and the price or the manner of determining the price and currency or other consideration to purchase such common stock, . the expiration date of each warrant, . the exercise date of each warrant, . the offering price and currency of each warrant, . if applicable, the designation and terms of the securities with which each warrant can be issued, . any provision dealing with the date on which the warrants and related securities will be separately transferable, . any provision granting a mandatory or an optional redemption provision, . the identity of the common stock warrant agent, . the form of the warrant certificates and . any other terms of the warrant. The warrants will be represented by certificates. The warrants may be exchanged under the terms outlined in the common stock warrant agreement. We will not charge any service charges for any transfer or exchange of warrant certificates, but we may require payment for tax or other governmental charges in connection with the exchange or transfer. Until a common stock warrant is exercised, a holder will not be entitled to any payments on or have any rights with respect to the common stock issuable upon exercise of the common stock warrant. Exercise of Common Stock Warrants To exercise warrants, the holder must provide the common stock warrant agent with the following: . payment of the exercise price, . certain information required as described on the reverse side of the warrant certificates, . the number of warrants to be exercised and . an executed and completed warrant certificate. The common stock warrant agent will issue a new warrant certificate for any warrants not exercised. The exercise price and the number of shares of common stock that each warrant can purchase will be subject to adjustment in certain events, including the issuance of a common stock dividend or a combination, subdivision or reclassification of common stock. No adjustment will be required until cumulative adjustments require an adjustment of at least 1%. From time to time, we may reduce the exercise price. No fractional shares will be issued upon exercise of warrants, but we will pay the cash value of any fractional shares otherwise issuable. If we enter into any consolidation, merger, or sale or conveyance of our property as an entirety, the holder of each outstanding warrant shall have the right to the kind and amount of shares of stock, other securities, property or -8- cash receivable by a holder of the number of shares of common stock into which such warrants were exercisable immediately prior to the occurrence of the event. Modification of the Common Stock Warrant Agreement The common stock warrant agreement will permit us and the common stock warrant agent, without the consent of the common stock warrant holders, to supplement or amend the agreement in the following circumstances: . to cure any ambiguity; . to correct or supplement any provision which may be defective or inconsistent with any other provisions; or . to add new provisions regarding certain matters or questions that we and the common stock warrant agent may deem necessary or desirable and which do not adversely affect the interests of the common stock warrant holders. DESCRIPTION OF NEWMONT MINING DEBT SECURITIES AND NEWMONT GOLD GUARANTEES General Newmont Mining may offer: . senior debt securities guaranteed by Newmont Gold and . subordinated debt securities guaranteed by Newmont Gold. Any senior debt securities will be issued under an indenture among Newmont Mining, Newmont Gold and Citibank, N.A., as trustee. Any subordinated debt securities will be issued under a separate indenture among Newmont Mining, Newmont Gold and Citibank, N.A., as trustee. All references in this section to debt securities are references to both the senior debt securities and the subordinated debt securities. All references to the indentures are references to both the indenture for senior debt securities and the indenture for the subordinated debt securities. All references to the trustee include both the trustee for the senior debt securities and the trustee for the subordinated debt securities. We have summarized below material provisions of the indentures. The summary is not complete and is subject to each of the indentures and the Trust Indenture Act of 1939. Each of the indentures has been filed as an exhibit to our registration statement on Form S-3. You should read each of the indentures. The debt securities will be unsecured indebtedness of Newmont Mining. The senior debt securities will rank equally with all of the other unsecured and unsubordinated indebtedness of Newmont Mining. The subordinated debt securities will be subordinate in right of payment to the senior debt securities as well as other indebtedness that Newmont Mining has now or may have in the future. The subordination provisions of the subordinated debt securities are discussed in greater detail below. The guarantee of the senior debt securities will constitute an unsecured, unsubordinated obligation of Newmont Gold and will rank equally with all other unsecured and unsubordinated obligations of Newmont Gold. The guarantee of the subordinated debt securities will constitute an unsecured obligation of Newmont Gold -9- and will be subordinated in right of payment to all senior or secured indebtedness that Newmont Gold has now or may have in the future. The subordination provisions relating to the guarantee of the subordinated debt securities are discussed in greater detail below. Neither indenture limits the amount of debt securities that we may issue under such indenture. Unless we state otherwise in the prospectus supplement, neither indenture limits the amount of other debt that we can issue. Both indentures allow us to issue debt securities in one or more series with different terms. The indentures provide that debt securities of a single series can be issued at different times with different interest rates, redemption and repayment provisions. The prospectus supplement for the series of debt securities being offered will include specific terms of the debt securities. These terms will include some or all of the following: . the title of the debt securities and whether such debt securities are senior or subordinated, . the total principal amount and permitted denomination of the debt securities, . the percentage of the principal amount of the debt securities at which the debt securities will be issued and any payments due if the maturity of the debt securities is accelerated, . the currency or currencies in which the principal and interest on the debt securities will be payable, . the dates on which the principal of the debt securities will mature, . the interest rate for the debt securities or the method that will be used to determine the interest rate, . the dates on which interest on the debt securities will be payable and the manner in which interest will be paid, . any mandatory or optional repayment or redemption provisions, . any sinking fund provisions, . any index used to determine the amount of payments of principal and/or interest, . any additional payment provisions, . any provision relating to the issuance of discounted debt securities and . in the case of debt securities that are convertible into common stock, the conversion price, the period during which the debt securities may be converted and any other terms of conversion which may differ from the applicable indenture. Some of the debt securities may be sold at a substantial discount below their stated principal amount and may provide for the payment of no interest or interest at a rate which at the time of issuance is below market rates. We will describe the U.S. federal income tax consequences and other -10- special considerations applicable to any discounted debt securities in the prospectus supplement relating to the discounted debt securities. Newmont Gold Guarantees Newmont Gold will unconditionally guarantee on an unsubordinated basis the due and punctual payment of the principal of, any premium and any interest on the senior debt securities, when and as these payments become due and payable, whether at maturity, upon redemption or declaration of acceleration, or otherwise. The guarantees of the senior debt securities will rank equally in right of payment with all other unsecured and unsubordinated indebtedness of Newmont Gold. Newmont Gold will unconditionally guarantee on a subordinated basis the due and punctual payment of the principal of, any premium and any interest on the subordinated debt securities, when and as these payments become due and payable, whether at maturity, upon redemption or declaration of acceleration, or otherwise. The guarantee of the subordinated debt securities will be subordinated as described in greater detail below. Newmont Gold has agreed that its obligations under the guarantee of the debt securities will be as principal obligor and not merely as surety, and will be enforceable irrespective of any invalidity, irregularity or unenforceability of the debt securities or the applicable indenture. Newmont Gold has also waived any right to require a proceeding against Newmont Mining before its obligations under the guarantees shall become effective. Convertibility of the Debt Securities The holders of debt securities of a specified series that are convertible into common stock of Newmont Mining will be entitled at certain times specified in the prospectus supplement to convert any such securities into common stock. The conversion price and other terms of the conversion will be set forth in the prospectus supplement. Subordination of Subordinated Debt Securities The indebtedness represented by the subordinated debt securities will be subordinated in right of payment to the prior payment in full of all of the senior indebtedness of Newmont Mining. The term "senior indebtedness" means, with respect to Newmont Mining, the principal of and any premium and interest on any indebtedness of Newmont Mining outstanding on the date of the subordinated debt securities indenture or to be created, incurred or assumed by Newmont Mining after the date of the indenture unless the terms of such indebtedness specifically state that it is not senior in right of payment to the subordinated debt securities. Upon the insolvency, liquidation, bankruptcy, reorganization or similar proceeding relating to Newmont Mining or its property: . the holders of senior indebtedness of Newmont Mining will be entitled to receive payment in full of all obligations before payment is made to any holders of the subordinated debt securities and -11- . until all obligations with respect to senior indebtedness of Newmont Mining are paid in full, any payment to which the holders of the subordinated debt securities would be entitled shall be made to the holders of senior indebtedness of Newmont Mining. In addition, Newmont Mining may not make any payment on account of the subordinated debt securities, if: . any senior indebtedness of Newmont Mining is not paid when due or . any other default on senior indebtedness of Newmont Mining occurs and the maturity of such senior indebtedness is accelerated. If there is a default with respect to any senior indebtedness of Newmont Mining other than the two types of default described immediately above and the maturity of the indebtedness may be accelerated immediately, a representative of the applicable senior indebtedness has the right to send Newmont Mining written notice stating that there has been a default. After receipt of such notice, Newmont Mining may not make any payments on the subordinated debt securities until the earlier of: . 179 days after the receipt of the notice, . the date on which the default which gave rise to the notice is no longer continuing, . the date that the default has been waived and any acceleration has been rescinded in writing or . the date when the applicable senior indebtedness has been paid in full. Not more than one blockage period notice may be given in any consecutive 360-day period, irrespective of the number of defaults with respect to senior indebtedness of Newmont Mining during such period. After all senior indebtedness of Newmont Mining is paid in full and all commitments in respect of the senior indebtedness have expired or terminated and until the subordinated debt securities are paid in full, holders of the subordinated debt securities will be subrogated to the rights of holders of senior indebtedness of Newmont Mining to receive distributions applicable to the senior indebtedness. Subordination of Guarantee of Subordinated Debt Securities Newmont Gold's guarantee of the subordinated debt securities will be subordinated in right of payment to the prior payment in full of all of the senior indebtedness of Newmont Gold. The term "senior indebtedness" means, with respect to Newmont Gold, the principal of and any premium and interest on any indebtedness of Newmont Gold outstanding on the date of the subordinated debt securities indenture or to be created, incurred or assumed by Newmont Gold after the date of the indenture unless the terms of such indebtedness specifically state that it is not senior in right of payment to the subordinated debt securities. -12- Upon the insolvency, liquidation, bankruptcy, reorganization or similar proceeding relating to Newmont Gold or its property: . the holders of senior indebtedness will be entitled to receive payment in full of all obligations before payment is made under the guarantee of the subordinated debt securities and . until all obligations with respect to senior indebtedness are paid in full, any payment to which the holders of subordinated debt securities would be entitled pursuant to the guarantee of the subordinated debt securities will be made to the holders of senior indebtedness. In addition, Newmont Gold may not make any payment on account of the subordinated debt securities, if: . any senior indebtedness of Newmont Gold is not paid when due or . any other default on senior indebtedness of Newmont Gold occurs and the maturity of such senior indebtedness is accelerated. If there is a default with respect to any senior indebtedness of Newmont Gold other than the two types of default described immediately above and the maturity of the indebtedness may be accelerated immediately, a representative of the applicable senior indebtedness has the right to send Newmont Gold written notice stating that there has been a default. After receipt of such notice, Newmont Gold may not make any payments on the guarantee of the subordinated debt securities until the earlier of: . 179 days after the receipt of the notice, . the date on which the default which gave rise to the notice is no longer continuing, . the date that the default has been waived and any acceleration has been rescinded in writing or . the date when the applicable senior indebtedness has been paid in full. Not more than one blockage period notice may be given in any consecutive 360-day period, irrespective of the number of defaults with respect to senior indebtedness of Newmont Gold during such period. After all senior indebtedness of Newmont Gold is paid in full and all commitments in respect of the senior indebtedness have expired or terminated and until Newmont Gold's obligations under the guarantee of the subordinated debt securities are paid in full, holders of the subordinated debt securities will be subrogated to the rights of holders of senior indebtedness of Newmont Gold to receive distributions applicable to the senior indebtedness. Global Notes, Delivery and Form The debt securities may be issued in the form of one or more global notes that will be deposited with a depositary identified in a prospectus supplement. Each note will be registered in the name of the depositary's nominee. Unless a global note is exchanged in whole or in part for debt securities in -13- definitive form, a global note may generally be transferred only as a whole and only to another nominee of the depositary or to a successor depositary or its nominee. Unless otherwise stated in the applicable prospectus supplement, the depositary will be The Depository Trust Company, New York, New York. Currently, it limits the maximum denomination of any single global note to $200 million. Beneficial interests in global notes will be shown on, and transfers of global notes will be effected only through, records maintained by DTC and its participants. DTC has provided us the following information, and we take no responsibility for its accuracy: DTC is a limited purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the United States Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code and a "clearing agency" registered under Section 17A of the Securities Exchange Act of 1934. DTC holds securities that its participants deposit with DTC. DTC also facilitates the clearance and recording of the settlement among its participants of securities transactions, such as transfers and pledges, in deposited securities through computerized records for participant's accounts. This eliminates the need for physical exchange of certificates. Direct participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. Other organizations such as securities brokers and dealers, banks and trust companies that work through a participant, either directly or indirectly use DTC's book-entry system. The rules that apply to DTC and its participants are on file with the SEC. DTC management is aware that some computer applications and systems for processing data that are dependent upon calendar dates, including dates before, on or after January 1, 2000, may encounter "Year 2000 problems." DTC has informed its participants and other members of the financial community that it has developed and is implementing a program so that its computer applications and systems, as the same relate to the timely payment of principal, interest and other distributions to security holders, book-entry deliveries and settlement of trades within DTC, continue to function appropriately. This program includes a technical assessment and remediation plan, both of which are complete. Additionally, DTC's plan includes a testing phase, which is expected to be completed within appropriate time frames. However, DTC's ability to perform its services properly is also dependent upon other parties, including but not limited to: (1) issuers and their agents, (2) third-party vendors from whom DTC licenses software and hardware, and (3) third-party vendors on whom DTC relies for information or the provision of services, including telecommunication and electric utility service providers. DTC has informed its participants and other members of the financial community that it is contacting third-party vendors from whom DTC acquires services to: (1) impress upon them the importance of such services being Year 2000 compliant and (2) determine the extent of their efforts for Year 2000 remediation and, as appropriate, testing of their services. In addition, DTC is in the process of developing contingency plans that it deems appropriate. Pursuant to DTC's procedures, upon issuance of debt securities represented by a global note in connection with the sale of the debt securities to one or more underwriters, -14- DTC will credit the accounts of the participants designated by the underwriters with the principal amount of the debt securities purchased by the underwriters. Ownership of beneficial interests in a global note will be shown . on DTC's records with respect to participants; . by the participants with respect to indirect participants and certain beneficial owners; and . by the indirect participants with respect to all other beneficial owners. The laws of some states require that certain persons take physical delivery in definitive form of the securities which they own. Consequently, the ability to transfer beneficial interests in a global note may be limited. Under the indentures, if the nominee of DTC is the registered owner of a global note, the nominee will be considered the sole owner or holder of the debt securities. Except as provided below, owners of a global note will not be entitled to have debt securities registered in their names, will not receive or be entitled to receive physical delivery of debt securities in definitive form, and will not be considered the owners or holders thereof under the indentures for any purpose, including with respect to the giving of any directions, instructions or approval to the trustee. However, DTC has advised us that pursuant to its customary practice with respect to the giving of consents and votes, it will deliver an omnibus proxy to the trustee assigning the related holder's voting rights to the participant to whose account the debt securities are credited on the record date. Each proxy will include a list of participants' positions in the relevant security as of the record date for a consent or vote. We will wire to DTC's nominee principal and interest payments with respect to global notes. We and the trustee will treat DTC's nominee as the owner of the global notes for all purposes. Accordingly, we, the trustee and any paying agent will have no direct responsibility or liability to pay amounts due on the global notes to owners of beneficial interests in the global notes or for maintaining and reviewing any records relating to the beneficial ownership interest. It is DTC's current practice, upon receipt of any payment of principal or interest, to credit participants' accounts on the payment date according to their holdings of beneficial interests in the global notes as shown on DTC's records. DTC's current practice is to credit such accounts, as to interest, in next-day funds and, as to principal, in same-day funds. Payments by participants to owners of beneficial interests in the global notes will be governed by standing instructions and customary practices between the participants and the owners of beneficial interests in the global notes, as is the case with securities held for the account of customers registered in "street name." However, payments will be the responsibility of the participants and not of DTC, the underwriters, the trustee or us. Debt securities represented by a global note will be exchangeable for debt securities in definitive form with the same terms in authorized denominations only if: . DTC notifies us that it is unwilling or unable to continue as depositary, and we do not appoint a successor depositary within 90 days or -15- . we determine not to have the debt securities represented by global notes. If any of these events occur, DTC will generally notify all direct participants of the availability of definitive debt securities. These securities will be issued in denominations of $1,000 and multiples thereof, in registered form only, and without coupons. We will maintain one or more offices or agencies in New York City to facilitate the transfer or exchange of the global notes. You will not be required to pay any service charges for any transfer or exchange, but we may require you to pay any tax, other governmental charge or payment in connection with the exchange or transfer. Same-Day Settlement in respect of Global Notes Secondary trading in definitive long-term notes and debentures of corporate issuers is generally settled in clearing-house or next-day funds. In contrast, debt securities represented by global notes held by DTC will trade in DTC's Same-Day Funds Settlement System until maturity, and DTC therefore will require that secondary market trading activity in such debt securities settle in immediately available funds. No assurance can be given as to the effect, if any, of settlement in immediately available funds on trading activity in debt securities represented by global notes. Restrictive Covenants Required by the Indenture The indenture for the senior debt securities requires us to comply with certain restrictive covenants. Some of the provisions are described below. All series of senior debt securities issued under the indentures will be entitled to the benefits of the covenants described below except for any series of senior debt securities that provides that they are not entitled to the benefits of the covenants described below. Definition of Attributable Debt "Attributable Debt" means, with respect to any lease, the present value of the total net rental payments during the remaining term of the lease. The present value will be determined by using the discount rate implicit in the terms of the lease as determined by two of our officers and will be compounded semiannually. The net amount of rent we may pay under any lease for any period is the amount of rent payable for the period but excluding payments for maintenance, repairs, insurance, taxes, assessments, water rates or similar charges. For any lease which we may terminate by paying a penalty, the net amount of rent will include the penalty, but no rent will be included after the first date that the lease may be terminated. Definition of Consolidated Net Tangible Assets "Consolidated Net Tangible Assets" means the aggregate amount of assets minus the following: . applicable reserves and other properly deductible items, . all current liabilities excluding (1) those that the borrower may extend or renew to a time more than 12 months after the time the amount of the liability is being computed, (2) current maturities of long-term indebtedness and (3) capital lease obligations and -16- . all goodwill shown on our balance sheet. Definition of Funded Debt "Funded Debt" means all indebtedness for money borrowed having a maturity of more than 12 months from the determination date or having a maturity of less than 12 months but that the borrower may renew or extend beyond 12 months. Definition of Principal Property "Principal Property" means any mine, plant or other facility, the land upon which it stands and the fixtures that are a part of it, (1) which is used primarily for mining and processing and is located in the U.S. and (2) the net book value of which exceeds 5% of Consolidated Net Tangible Assets. Principal Property does not include (1) any mine, plant or facility which, in the opinion of our board of directors, is not of material importance to our total business or (2) any portion of a particular mine, plant or facility which is not of material importance to the use or operation of the mine, plant or facility. Definition of Restricted Subsidiary "Restricted Subsidiary" means any Subsidiary (1) with substantially all of its property located, or carrying on substantially all of its business, within the U.S. and (2) which owns a Principal Property. "Restricted Subsidiary", however, does not include any Subsidiary whose primary business consists of (1) financing operations in connection with leasing and conditional sales transactions on behalf of us and our Subsidiaries, (2) purchasing accounts receivable or making loans secured by accounts receivable or inventory or (3) being a finance company. Definition of Subsidiary "Subsidiary" is defined as any corporation or entity in which we or one or more of our Subsidiaries directly or indirectly owns a majority of the voting interests. Limitation on Liens The indenture for the senior debt securities will prohibit us and any of our Restricted Subsidiaries from incurring, issuing, assuming or guarantying any debt for money borrowed or any debt evidenced by notes, bonds, debentures or other similar documents ("Debt") secured by any mortgage, security interest or other liens (collectively, "Mortgages") on any Principal Property or shares of stock or indebtedness of any Restricted Subsidiary, without securing all outstanding series of debt securities under the applicable indenture (other than any series of debt securities that provide that the debt securities of the series are not entitled to the benefit of this covenant) equally and ratably with (or prior to) the secured Debt to be incurred, issued, assumed or guaranteed. This restriction, however, will not apply if the sum of the following does not exceed 10% of Consolidated Net Tangible Assets: . the aggregate principal amount of such secured Debt, . all secured Debt which would otherwise be prohibited, and . all of our and our Restricted Subsidiary's Attributable Debt in respect of sale and leaseback transactions which would otherwise be prohibited by the covenant limiting sale and -17- leaseback transactions described below. The restriction described above also will not apply to debt for borrowed money secured by the following: . Mortgages on property, stock or Debt of any entity existing at the time it becomes a Restricted Subsidiary, . Mortgages to secure indebtedness of a Restricted Subsidiary to us or to another Restricted Subsidiary, . Mortgages for taxes, assessments or governmental charges or levies (1) that are not yet due and delinquent or (2) the validity of which is being contested in good faith, . Mortgages of materialmen, mechanics, carriers, workmen, repairmen, landlords or other similar Mortgages, or deposits to obtain the release of these Mortgages, . Mortgages arising under attachment or restraint or similar legal process and the execution or enforcement of which is stayed and which are being contested in good faith, . Mortgages (1) to secure public or statutory obligations, (2) to secure payment of workmen's compensation, (3) to secure performance in connection with tenders, leases of real property, bids or contracts; or (4) to secure (or in lieu of) surety or appeal bonds, and Mortgages made in the ordinary course of business for similar purposes, . Mortgages in favor of the United States, any state in the United States, or any foreign governmental entity to secure payments pursuant to any contract or statute (including Debt of the pollution control or industrial revenue bond type) or to secure any debt incurred to finance the purchase price or the cost of construction of the property subject to the Mortgage, . Mortgages on property (including capitalized leases), stock or Debt of a corporation (1) existing at the time we or our Restricted Subsidiary acquired the entity, (2) that secure the payment of the purchase price, construction cost or improvement cost of the property, stock or Debt; or (3) that secure any Debt incurred prior to, at the time of, or within one year after we or our Restricted Subsidiary acquired the property, shares or Debt, completed the construction on or commenced commercial operation of the property for the purpose of financing the purchase price or construction cost, . Mortgages existing at the date of the applicable indenture and . any extension, renewal or replacement of any of the Mortgages enumerated above that does not increase the Debt and that is limited to all or a part of the same property, stock or -18- Debt that secured the original mortgage. The restrictions discussed above also will not apply to (1) any gold-based loan or forward sale arrangement and (2) Mortgages on property that we or any Restricted Subsidiary own or lease to secure our or a Restricted Subsidiary's proportionate share of any payments required to be made to any Person incurring the expense of developing, exploring or conducting operations for the recovery, processing or sale of the mineral resources of the property. Limitation on Sales and Leasebacks The indenture for the senior debt securities will prohibit us and any of our Restricted Subsidiaries from entering into any arrangement with any third party lender or investor under which we or any Restricted Subsidiary will lease for a period, including renewals, in excess of three years, any Principal Property if we or the Restricted Subsidiary sold or will sell or transfer the Principal Property more than 270 days after the acquisition of the Principal Property or after completion of construction and commencement of full operation of the Principal Property, to the lender or investor or to any person to whom funds have been or will be advanced by the lender or investor on the security of the Principal Property (herein referred to as a "sale and lease-back transaction"), unless: . we or any Restricted Subsidiary could create Debt secured by a mortgage on the Principal Property to be leased back in an amount equal to the Attributable Debt with respect to such sale and leaseback transaction without equally and ratably securing the debt securities of all series pursuant to the provisions of the covenant on limitation on liens described above or . we apply within 180 days after the sale or transfer an amount equal to the greater of (1) the net proceeds of the sale of the Principal Property sold and leased back pursuant to the arrangement or (2) the fair market value of the Principal Property so sold and leased back at the time of entering into the arrangement to: (a) the purchase of different property, facilities or equipment which has a value at least equal to the net proceeds of the sale or (b) the retirement of our Funded Debt or that of a Restricted Subsidiary (other than as a result of payment at maturity or pursuant to any mandatory sinking fund or prepayment provision). The amount to be applied to the retirement of Funded Debt, however, will be reduced by: . the principal amount of any debt securities of any series delivered within 180 days after such sale to the trustee for retirement and cancellation, . if the debt securities of any series are original issue discount debt securities or provide that an amount other than the face value is payable upon maturity or a declaration of acceleration, the amount that is due and payable with respect to such series pursuant to Section 4.1 of each of the indentures delivered within -19- 180 days after such sale to the trustee for retirement and cancellation and . the principal amount of Funded Debt, other than the debt securities, voluntarily retired within 180 days after such sale. Merger and Consolidation Newmont Mining We may consolidate or merge with or into any other corporation and may sell, transfer or lease all of our property or substantially all of our property to any corporation, if: . the corporation, if other than us, which resulted from or received the property expressly assumes by supplemental indenture the due and punctual payment of the principal of and any premium or interest on the debt securities and the performance and observance of each agreement to be performed or observed by us under the debt securities and the indentures; and . immediately after the completion of the transaction, no Event of Default and no event which, after notice or lapse of time or both, would become an Event of Default shall have occurred and be continuing. Newmont Gold Newmont Gold may consolidate or merge with or into any other corporation and may sell, transfer or lease all of its property or substantially all of its property, if: . the corporation, if other than Newmont Gold, which resulted from or received the property expressly assumes by supplemental agreement the due and punctual performance and observance of each agreement to be performed or observed by Newmont Gold under the debt securities and the indentures; and . immediately after the completion of the transaction, no Event of Default and no event which, after notice or lapse of time or both, would become an Event of Default shall have occurred and be continuing. Event of Default "Event of Default", when used in each of the indentures with respect to any series of debt securities, will mean any of the following: . failure to pay interest on any debt security of the series for 30 days after it is due, . failure to pay the principal or any premium on any debt security of the series when it is due, . failure to pay any sinking fund payment on any debt security of the series when it is due, . failure to perform any other covenant in the applicable indenture for the benefit of the series of debt securities that continues for 90 days after we have been given written notice of that failure, -20- . certain events of bankruptcy, insolvency or reorganization of Newmont Mining or Newmont Gold, . Newmont Gold's guarantee of the debt securities of the series ceases to be in full force or effect except as contemplated by the terms thereof or Newmont Gold denies or disaffirms its obligations under the guarantee, or . any other Event of Default specified for the series of debt securities. Within 90 days after a default occurs with respect to any series of debt securities, the trustee must notify the holders of the debt securities of the series of the default if we have not remedied it. Default is defined to include the events listed above without any grace periods. The trustee may withhold notice to the holders of the debt securities of any default except in the payment of principal, premium, interest or sinking fund payment if it in good faith considers the withholding of notice in the interest of all of the holders of the debt securities of the series. We are required to file an annual certificate with the trustee about any default by us under any provisions of the applicable indenture. If any Event of Default occurs and continues for any series of debt securities, the trustee or the holders of at least 25% of the principal amount of the debt securities of the outstanding series may declare the principal and interest accrued on all the debt securities of that series to be due and payable immediately. If this happens, subject to certain conditions, the holders of at least a majority of the aggregate principal amount of the debt securities of that series can annul the declaration. In addition, past defaults other than in payments of principal and interest may also be waived by the same vote. If an Event of Default occurs and continues for any series of debt securities, the holders of at least a majority of the principal amount of the affected series of debt securities then outstanding may direct the time, method and place of conducting any proceeding or any remedy available to the trustee, or exercising any power given to or conferred upon the trustee under the indentures, for the series of debt securities. The trustee does not have to exercise any of its rights or powers under either of the indentures at the direction of any holders of notes unless the holders offer the trustee reasonable indemnity or reasonable security against expenses and liabilities. The Trust Indenture Act of 1939 requires that we file with the trustee annually a written statement regarding the presence or absence of certain defaults. Defeasance Defeasance and Discharge of Obligations Under the indentures, Newmont Mining will be discharged from its non- administrative obligations under the debt securities of any series and Newmont Gold will be discharged from its obligations under the guarantee of debt securities of that series if we deposit with the trustee in trust sufficient money and/or U.S. government securities to pay the interest and principal due on the stated due date of those payments. This trust may only be established if, among other things, we deliver to the trustee an opinion of counsel stating that, due to an Internal Revenue Service ruling or a change in federal income tax law, holders -21- of the debt securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of this defeasance and will be subject to federal income tax, as if this defeasance had not occurred. Defeasance of Certain Covenants and Certain Events of Default The indenture for the senior debt securities provides that we may be released from our obligation to comply with the covenants limiting liens and sale and leaseback transactions, and with any related Event of Default if we deposit with the trustee in trust money and/or U.S. government securities which provide for payment of the principal of and each installment of interest on the debt securities due on the stated maturity of such payments. Our other obligations under the indenture and the senior debt securities of such series and other Events of Default and Newmont Gold's obligations under the related guarantee would remain in full force and effect. The trust may only be established if, among other things, we have delivered to the trustee an opinion of counsel stating that the holders of the senior debt securities of such series will not recognize income, gain, or loss for federal income tax purposes as a result of a deposit and defeasance of the covenants and the Event of Default noted above and will be subject to federal income tax as would have been the case if such deposit and defeasance had not occurred. If we exercise the option described in this section and the debt securities of a series are declared due and payable because of the occurrence of an Event of Default other than the Event of Default related to the covenants limiting liens and sale and leaseback transactions, the amount of money and U.S. government securities on deposit with the trustee will be sufficient to pay amounts due on the senior debt securities of a series at the time of their stated maturity but may not be sufficient to pay amounts due on the debt securities of such series at the time of the acceleration resulting from the Event of Default. Changes to Indentures Under each of the indentures, we, Newmont Gold and the trustee may modify our rights and obligations, the rights and obligations of Newmont Gold and the rights of the holders of debt securities with the consent of the holders of at least a majority of the principal amount of the outstanding debt securities of all series issued under the indentures affected by the modification. However, we must get the consent of the holder of each debt security affected to make the following changes to the debt securities: . an extension of the fixed maturity of any debt security, . a reduction of the principal amount payable on any debt security, . a reduction in the rate of interest payable on any debt security, . a change in currency in which payments are made, . an extension of the time of payment of interest, . a modification that affects adversely any right of a holder of a debt security to repayment, . a reduction in the principal amount of an original issue discount debt security due and -22- payable upon a acceleration of the maturity, . an adverse change in or elimination of conversion rights, . a reduction in the portion of the principal amount of a debt security provable in bankruptcy, . a reduction in amounts payable upon redemption, . a reduction in the rate of interest payable on overdue amounts and . a reduction in the percentage of holders of the outstanding debt securities of each series required to consent to any modification discussed above. Under each of the indentures, we can make certain modifications to the applicable indenture with the consent of the trustee but without the consent of any holders of debt securities to evidence our merger, the replacement of the trustee and for certain other purposes. Duties and Powers of the Trustee Except during the continuance of an Event of Default, the trustee under each of the indentures will perform only the duties set forth in the applicable indenture. During the continuance of any Event of Default, the trustee will exercise the rights and powers given it under the applicable indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under similar circumstances in the conduct of his own affairs. The trustee may acquire and hold securities of Newmont Mining and, subject to certain conditions, otherwise deal with us as if it were not trustee. We currently conduct banking transactions with the trustee in the ordinary course of our business. DESCRIPTION OF NEWMONT MINING DEBT SECURITY WARRANTS We may issue warrants for the purchase of debt securities. The warrants may be issued independently or together with any securities offered by any prospectus supplement. The warrants will be issued under one or more debt security warrant agreements between us and a bank or trust company as debt security warrant agent. The debt security warrant agent will be our agent and will not assume any obligations to any owner of the debt security warrants. We have summarized certain provisions of the separate debt security warrant agreements. The summary is not complete, and is subject to the debt security warrant agreement. General Under the debt security warrant agreement, the warrants may be issued in one or more series. The prospectus supplement and the debt security warrant agreement relating to any series of warrants will include specific terms about the warrants. These terms include some of the following: . the type and number of warrants, . the aggregate principal amount of related debt securities for which the warrant can be exercised and the price or the manner of determining the price and currency or other consideration -23- to purchase such debt securities, . the expiration date of each warrant, . the exercise date of each warrant, . the offering price and currency of each warrant, . if applicable, the designation and terms of the securities with which each warrant can be issued, . any provision dealing with the date on which the warrants and related securities will be separately transferable, . any provision granting a mandatory or an optional redemption provision, . the identity of the debt security warrant agent, . the form of the debt security warrant certificates and . any other terms of the warrant. The warrants will be represented by certificates. The warrants may be exchanged pursuant to the procedure outlined in the debt security warrant agreement. We will not charge any service charges for any transfer or exchange of warrant certificates, but we may require payment for tax or other governmental charges in connection with the exchange or transfer. Until a warrant is exercised, a holder will not be entitled to any payments on or have any rights with respect to the debt securities issuable upon exercise of the warrant. Exercise of Debt Security Warrants To exercise warrants, the holder must provide the debt security warrant agent with the following: . payment of the exercise price, . certain information required by the reverse side of the warrant certificates, . the number of warrants to be exercised and . an executed and completed warrant certificate. The debt security warrant agent will issue a new warrant certificate for any warrants not exercised. From time to time, we may reduce the exercise price. Modification of the Debt Security Warrant Agreement The debt security warrant agreement will permit us and the debt security warrant agent, without the consent of the warrant holders, to supplement or amend the agreement in the following circumstances: . to cure any ambiguity, . to correct or supplement any provision which may be defective or inconsistent with any other provisions or . to add new provisions regarding certain matters or questions that we and the debt security warrant agent may deem necessary or desirable and which do not adversely affect the interests of the warrant holders. -24- U.S. FEDERAL INCOME TAX CONSIDERATIONS AS A REAL PROPERTY HOLDING CORPORATION We are likely to constitute a U.S. real property holding corporation within the meaning of the Internal Revenue Code of 1986, as amended (the "Code"). Under certain provisions of the Code and the income tax regulations, gain realized by a non-U.S. person who would not ordinarily be subject to U.S. federal income tax on gains would, under certain circumstances, be subject to tax (the "special tax") on gain realized on the disposition (and possible withholding tax on the proceeds from such sale (the "withholding tax")) of our securities, notwithstanding such non-U.S. person's lack of other connections with the U.S. However, because our common stock is regularly traded on an established securities market, the special tax and the withholding tax would apply to the disposition by a non-U.S. person of an interest in a class of securities that is not regularly traded on established securities market only if on the date such interest was acquired by such person it had a fair market value greater than the fair market value on that date of 5% of the regularly traded class of securities with the lowest fair market value. However, if such non-regularly traded class of securities is convertible into a regularly traded class of securities, the special tax and the withholding tax would apply to the disposition of an interest in such non-regularly traded class of securities only if on the date such interest was acquired by such person it had a fair market value greater than the fair market value on that date of 5% of the regularly traded class of securities into which it is convertible. The special tax (but, except in certain circumstances, not the withholding tax) would likewise apply to a disposition of an interest in a class of securities that is regularly traded on an established securities market by a non-U.S. person who beneficially owns, directly or indirectly, more than 5% of such class of securities at any time during the five year period immediately preceding the disposition of the interest. Certain U.S. federal income tax consequences of an investment in a class of securities will, to the extent appropriate under the circumstances, be described in the prospectus supplement relating thereto. Each prospective holder of securities is urged to consult its own tax advisors regarding the U.S. federal tax consequences of an investment in such securities, as well as the tax consequences under any state, local or foreign tax laws. PLAN OF DISTRIBUTION We may sell the securities described in this prospectus . through agents . through underwriters or dealers or . directly to one or more purchasers. The distribution of the securities may be made from time to time in one or more transactions at a fixed price or prices. The fixed price may be changed to reflect market prices prevailing at the time of sale at negotiated prices. Except the common stock, the securities will have no established trading market. Underwriters and agents to whom securities are sold for public offering and sale may make a market in the securities, but will -25- not be obligated to do so and could stop doing so at any time without notice. We cannot guarantee that there will be a market for the securities. In connection with the sale of offered securities, underwriters may receive compensation from us or from purchasers of offered securities for whom they may act as agents in the form of discounts, concessions or commissions. Underwriters may sell offered securities to or through dealers and such dealers may receive compensation in the form of discounts, concessions and commissions from the underwriters and commissions from the purchasers for whom they may act as agents. Underwriters, dealers, agents or direct purchasers that participate in the distribution of the offered securities may be underwriters as defined in the Securities Act of 1933, and any discounts or commissions that we pay to them and any profit on their resale of the offered securities may be treated as underwriting discounts and commissions under the Securities Act of 1933. We will identify any underwriters, dealers, agents or direct purchasers and describe their compensation in the prospectus supplement. We may have agreements with the underwriters, dealers and agents who participate in the sale of offered securities to indemnify them against certain civil liabilities, including liabilities under the Securities Act of 1933, or to contribute with respect to payments which the underwriters, dealers or agents may be required to make. We may authorize agents, underwriters or dealers to solicit offers by certain institutional investors to purchase debt securities which will be paid for and delivered on a future date specified in the prospectus supplement. The obligations of any purchasers under this delayed delivery and payment arrangements will not be subject to any conditions except that the purchase at delivery must not be prohibited under the laws of any jurisdiction in the United States to which the institution is subject. The underwriters and dealers will not have any responsibility for the validity and performance of these contracts. LEGAL OPINION White & Case LLP will issue for us an opinion about the legality of the offered securities. EXPERTS The consolidated financial statements incorporated by reference in this prospectus have been audited by Arthur Andersen LLP and PricewaterhouseCoopers LLP, independent public accountants, as indicated in their reports with respect thereto and are included herein in reliance upon the authority of said firms as experts in giving said reports. WHERE YOU CAN FIND MORE INFORMATION Newmont Mining We file annual, quarterly and special reports, proxy statements and other information with the SEC. Our SEC filings are available to the public from our web site at http://www.newmont.com or from the SEC's web site at http://www.sec.gov. You may also read and copy any document we file at the SEC's public reference rooms in Washington, D.C., New York City and Chicago. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. The SEC allows us to "incorporate by reference" in this prospectus the -26- information in the documents that we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be a part of this prospectus, and information in documents that we file later with the SEC will automatically update and supersede information contained in documents filed earlier with the SEC or contained in this prospectus. We incorporate by reference in this prospectus the documents listed below and any future filings that we may make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until we sell all of the securities that may be offered by this prospectus: . Annual Report on Form 10-K for the year ended December 31, 1998; . Quarterly Report on Form 10-Q for the quarter ended March 31, 1999; and . Current Reports on Form 8-K dated February 5, 1999 and July 12, 1999. You may request a copy of these documents at no cost to you, by writing or telephoning us as follows: Newmont Mining Corporation 1700 Lincoln Street Denver, Colorado 80203 Attn: Office of the Secretary (303) 863-7414 You should rely only on the information incorporated by reference or provided in this prospectus or in any prospectus supplement. We have not authorized anyone to provide you with different information. We are not making an offer of the securities described in this prospectus in any state where the offer is not permitted. You should not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the front of those documents. Newmont Gold Newmont Gold is our consolidated wholly owned subsidiary. Newmont Gold is not required to file separate reports with the SEC. -27- PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses of Issuance and Distribution.* SEC filing fee............................................ $ 27,809 Accounting fees and expenses.............................. 13,000 Legal fees and expenses................................... 150,000 Blue Sky and Legal Investment expenses.................... 20,000 Warrant Agent's fees...................................... 2,500 Transfer Agent's fees..................................... 2,500 Trustee's fees............................................ 5,000 Rating agency fees........................................ 135,000 Printing and engraving expenses........................... 25,000 Miscellaneous............................................. 10,000 -------- Total..................................................... $390,809 ========
____________________ *All estimates except for filing fee. Item 15. Indemnification of Directors and Officers. Section 145 of the Delaware General Corporation Law authorizes and empowers each Delaware corporation to indemnify its directors, officers, employees and agents against liabilities incurred in connection with, and related expenses resulting from, any claim, action or suit brought against any such person as a result of his or her relationship with the corporation, provided that such persons acted in good faith and in a manner such person reasonably believed to be in, and not opposed to, the best interests of the corporation in connection with the acts or events on which such claim, action or suit is based. The finding of either civil or criminal liability on the part of such person in connection with such acts or events is not necessarily determinative of the question of whether such person has met the required standard of conduct and is, accordingly, entitled to be indemnified. The foregoing statements are subject to the detailed provisions of Section 145 of the General Corporation Law of the State of Delaware. The By-Laws of Newmont Mining provide that each person who at any time is or shall have been a director or officer of the Newmont Mining, or is or shall have been serving another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity at the request of Newmont Mining, and his or her heirs, executors and administrators, shall be indemnified by Newmont Mining in accordance with and to the full extent permitted by the General Corporation Law of the State of Delaware. Section 6 of the By-Laws of Newmont Mining facilitates enforcement of the right of directors and owners to be indemnified by establishing such right as a contract right pursuant to which the person entitled thereto may bring suit as if the indemnification provisions of the By-Laws were set forth in a separate written contract between Newmont Mining and the director or officer. The By-Laws of Newmont Gold provide that Newmont Gold shall indemnify, in all respects and to the full extent authorized or permitted by law, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of his or her being or having been a director, officer, employee or agent of Newmont Gold or, at the request of Newmont Gold, of any other corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement II-1 reasonably incurred by such person in connection with such action, suit or proceeding. Such indemnification of any person shall inure to the benefit of his or her heirs, executors and administrators. Item 16. Exhibits. Exhibit Number Description of Documents - ------ ------------------------ 1.1 - Proposed form of Underwriting Agreement relating to the Common Stock, the Preferred Stock, the Depositary Shares and the Common Stock Warrants. Incorporated by reference to Exhibit 1 to Newmont Mining Corporation's Registration Statement on Form S-3 (Registration No. 333-59141). 1.2 - Proposed form of Underwriting Agreement relating to the Debt Securities and the Debt Security Warrants. 4.1 - Restated Certificate of Incorporation of Newmont Mining Corporation dated as of July 13, 1987. Incorporated by reference to Exhibit 3 to Newmont Mining's Form 10-K for the year ended December 31, 1987. 4.2 - Amendment to the Restated Certificate of Incorporation of Newmont Mining Corporation dated May 5, 1997. Incorporated by reference to Exhibit 4.2 to Newmont Mining Corporation's Registration Statement on Form S-3 (Registration No. 333-59141). 4.3 - By-Laws of Newmont Mining Corporation as amended through November 1, 1993 and adopted November 1, 1993. Incorporated by reference to Exhibit 3(b) to Newmont Mining Corporation's Annual Report on Form 10-K for the year ended December 31, 1993. 4.4 - Indenture relating to the Senior Debt Securities to be dated on or about the date of the first issuance of the Senior Debt Securities thereunder among Newmont Mining Corporation, Newmont Gold Company and Citibank, N.A. ("Citibank"), (including forms of Senior Debt Securities) (the "Senior Indenture"). 4.5 Indenture relating to the Subordinated Debt Securities to be dated on or about the date of the first issuance of Subordinated Debt Securities thereunder among Newmont Mining Corporation, Newmont Gold Company and Citibank (including form of Subordinated Debt Securities) (the "Subordinated Indenture"). 4.6 - Rights Agreement dated August 30, 1990 (the "Rights Agreement") between Newmont Mining Corporation and Manufacturers Hanover Trust Corporation, as Rights Agent. Incorporated by reference to Exhibit 1 to Newmont Mining Corporation's Registration Statement on Form 8-A dated August 31, 1990. 4.7 - First Amendment dated November 27, 1990 to the Rights Agreement. Incorporated by reference to Exhibit 2 to Newmont Mining Corporation's Form 8 dated December 7, 1990. 4.8 - Second Amendment dated December 7, 1990 to the Rights Agreement. Incorporated by reference to Exhibit 3 to Newmont Mining Corporation's Form 8 dated December 7, 1990. 4.9 - Third Amendment dated February 26, 1992 to the Rights Agreement. Incorporated by reference to Exhibit 4 to Newmont Mining Corporation's Form 8 dated March 17, 1992. II-2 4.10 - Form of Common Stock Warrant Agreement (including form of Warrant). Incorporated by reference to Exhibit 4.15 to Newmont Mining Corporation's Registration Statement on Form S-3 (No. 33- 54249). 5 - Opinion of White & Case LLP. 12.1 - Computation of Ratio of Earnings to Fixed Charges and Preferred Stock Dividends. 12.2 - Computation of Ratio of Earnings to Fixed Charges. 23.1 - Consent of Arthur Andersen LLP. 23.2 - Consent of PricewaterhouseCoopers LLP. 23.3 - Consent of White & Case LLP (included in Exhibit 5). 24.1 - Power of Attorney of certain officers and directors of Newmont Mining Corporation. 24.2 - Power of Attorney of certain officers and directors of Newmont Gold Company. 25.1 - Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Citibank, as Indenture Trustee under the Senior Indenture. 25.2 - Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Citibank as Indenture Trustee under the Subordinated Indenture. Item 17. Undertakings. The undersigned Registrants hereby undertake: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) to include any prospectus required by Section 10(a)(3) of the Act; (ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; II-3 provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by one of the Registrants pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference in the registration statement; (2) that, for the purpose of determining any liability under the Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; and (4) that, for purposes of determining any liability under the Act, each filing of Newmont Mining's annual report pursuant to Section 13(a) or 15(d) of the 1934 Act that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of the Registrants pursuant to the foregoing provisions, or otherwise, the Registrants have been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by one of the Registrants of expenses incurred or paid by a director, officer or controlling person of such Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, such Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Denver, State of Colorado, on the 12th day of July, 1999. NEWMONT MINING CORPORATION By /s/ Timothy J. Schmitt ------------------------------------- Timothy J. Schmitt Vice President and Secretary Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities and on the dates indicated. Signature Title Date - --------- ----- ---- * - --------------------- Ronald C. Cambre Chairman, President and Chief July 12, 1999 Executive Officer and Director (Principal Executive Officer) * - --------------------- James T. Curry, Jr. Director July 12, 1999 * - --------------------- Joseph P. Flannery Director July 12, 1999 * - --------------------- Leo I. Higdon, Jr. Director July 12, 1999 * - --------------------- Robin A. Plumbridge Director July 12, 1999 * - --------------------- Robert H. Quenon Director July 12, 1999 * - --------------------- Michael K. Reilly Director July 12, 1999 * - --------------------- James V. Taranik * - --------------------- William I.M. Turner, Jr. Director July 12, 1999 * - --------------------- Wayne W. Murdy Executive Vice President and Chief July 12, 1999 Financial Officer (Principal Financial Officer) II-5 * - --------------------- Linda K. Wheeler Vice President and Controller July 12, 1999 (Principal Accounting Officer) *By /s/ Timothy J. Schmitt ------------------------ Timothy J. Schmitt as Attorney-in-fact II-6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Denver, State of Colorado, on the 12th day of July, 1999. NEWMONT GOLD COMPANY By /s/ Timothy J. Schmitt -------------------------------- Timothy J. Schmitt Vice President and Secretary Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed below by the following persons in the capacities and on the dates indicated. Signature Title Date - --------- ----- ---- * - ---------------------- Ronald C. Cambre Chairman, President and Chief July 12, 1999 Executive Officer and Director (Principal Executive Officer) * - ---------------------- Joy E. Hansen Director July 12, 1999 * - ---------------------- Lawrence T. Kurlander Director July 12, 1999 * - ---------------------- Wayne W. Murdy Executive Vice President and Chief July 12, 1999 Financial Officer and Director (Principal Financial Officer) * - ---------------------- Linda K. Wheeler Controller July 12, 1999 (Principal Accounting Officer) *By /s/ Timothy J. Schmitt ------------------------ Timothy J. Schmitt as Attorney-in-fact II-7 EXHIBIT INDEX Exhibit Number - ------ 1.1 - Proposed form of Underwriting Agreement relating to the Common Stock, the Preferred Stock, the Depositary Shares and the Common Stock Warrants. Incorporated by reference to Exhibit 1 to Newmont Mining Corporation's Registration Statement on Form S-3 (Registration No. 333-59141). 1.2 - Proposed form of Underwriting Agreement relating to the Debt Securities and the Debt Security Warrants. 4.1 - Restated Certificate of Incorporation of Newmont Mining Corporation dated as of July 13, 1987. Incorporated by reference to Exhibit 3 to Newmont Mining's Form 10-K for the year ended December 31, 1987. 4.2 - Amendment to the Restated Certificate of Incorporation of Newmont Mining Corporation dated May 5, 1997. Incorporated by reference to Exhibit 4.2 to Newmont Mining Corporation's Registration Statement on Form S-3 (Registration No. 333-59141). 4.3 - By-Laws of Newmont Mining Corporation as amended through November 1, 1993 and adopted November 1, 1993. Incorporated by reference to Exhibit 3(b) to Newmont Mining Corporation's Annual Report on Form 10-K for the year ended December 31, 1993. 4.4 - Indenture relating to the Senior Debt Securities to be dated on or about the date of the first issuance of the Senior Debt Securities thereunder among Newmont Mining Corporation, Newmont Gold Company and Citibank, N.A. ("Citibank"), (including forms of Senior Debt Securities) (the "Senior Indenture"). 4.5 Indenture relating to the Subordinated Debt Securities to be dated on or about the date of the first issuance of Subordinated Debt Securities thereunder among Newmont Mining Corporation, Newmont Gold Company and Citibank (including form of Subordinated Debt Securities) (the "Subordinated Indenture"). 4.6 - Rights Agreement dated August 30, 1990 (the "Rights Agreement") between Newmont Mining Corporation and Manufacturers Hanover Trust Corporation, as Rights Agent. Incorporated by reference to Exhibit 1 to Newmont Mining Corporation's Registration Statement on Form 8-A dated August 31, 1990. 4.7 - First Amendment dated November 27, 1990 to the Rights Agreement. Incorporated by reference to Exhibit 2 to Newmont Mining Corporation's Form 8 dated December 7, 1990. 4.8 - Second Amendment dated December 7, 1990 to the Rights Agreement. Incorporated by reference to Exhibit 3 to Newmont Mining Corporation's Form 8 dated December 7, 1990. 4.9 - Third Amendment dated February 26, 1992 to the Rights Agreement. Incorporated by reference to Exhibit 4 to Newmont Mining Corporation's Form 8 dated March 17, 1992. II-8 4.10 - Form of Common Stock Warrant Agreement (including form of Warrant). Incorporated by reference to Exhibit 4.15 to Newmont Mining Corporation's Registration Statement on Form S-3 (No. 33- 54249). 5 - Opinion of White & Case LLP. 12.1 - Computation of Ratio of Earnings to Fixed Charges and Preferred Stock Dividends. 12.2 - Computation of Ratio of Earnings to Fixed Charges. 23.1 - Consent of Arthur Andersen LLP. 23.2 - Consent of PricewaterhouseCoopers LLP. 23.3 - Consent of White & Case LLP (included in Exhibit 5). 24.1 - Power of Attorney of certain officers and directors of Newmont Mining Corporation. 24.2 - Power of Attorney of certain officers and directors of Newmont Gold Company. 25.1 - Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Citibank, as Indenture Trustee under the Senior Indenture. 25.2 - Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of Citibank as Indenture Trustee under the Subordinated Indenture. II-9 EX-1.2 2 PROPOSED FORM OF UNDERWRITING AGREEMENT - DEBT EXHIBIT 1.2 NEWMONT MINING CORPORATION, Issuer NEWMONT GOLD COMPANY, Guarantor Debt Securities Underwriting Agreement ---------------------- _____________, ____ Dear Sirs: 1. Introductory. Newmont Mining Corporation, a Delaware corporation ------------ (the "Company"), proposes to issue and sell from time to time certain of its debt securities registered under the registration statement referred to in Section 2(a) ("Registered Securities"). Payment of principal of, and interest, if any, and premium, if any, on the Debt Securities will be unconditionally guaranteed by Newmont Gold Company, a Delaware corporation, as Guarantor (the "Guarantor"), pursuant to the terms and conditions of the guaranty issued under the Indenture (as defined below) (the "Guaranty"). The Registered Securities may be convertible into common shares of the Company, par value $1.60 per share ("Common Shares"). The Registered Securities will be issued under an indenture, dated as of __________, ____ (the "Indenture"), among the Company, the Guarantor and Citibank, N.A., as Trustee, in one or more series, which series may vary as to interest rates, maturities, redemption provisions, selling prices and, in the case of Registered Securities that are convertible at the option of holders into Common Shares ("Convertible Registered Securities"), conversion prices and the terms and conditions relating to such conversion rights and other terms, with all such terms for any particular series of the Registered Securities being determined at the time of sale. The issuance and sale of Registered Securities and the Guaranty have been registered under the registration statement referred to in Section 2(a). Particular series of the Registered Securities will be sold pursuant to a Terms Agreement referred to in Section 3 in the form of Annex I attached hereto, for resale in accordance with terms of offering determined at the time of sale. The Registered Securities and related Guaranty are hereunder referred to as the "Securities". The firm or firms which agree to purchase the Securities are hereinafter referred to as the "Underwriters" of such Securities, and the representative or representatives of the Underwriters, if any, specified in a Terms Agreement referred to in Section 3 are hereinafter referred to as the "Representatives"; provided, however, that if the Terms Agreement does not -------- ------- specify any representative of the Underwriters, the term "Representatives", as used in this Agreement (other than in Section 5(c) and the second sentence of Section 3) shall mean the Underwriters. 2. Representations and Warranties of the Company and the Guarantor. --------------------------------------------------------------- The Company and the Guarantor, jointly and severally, represent and warrant to, and agree with, each Underwriter that: (a) A registration statement (No. 333-____), including a prospectus relating to the Securities, has been filed with the Securities and Exchange Commission (the "Commission") and has become effective. Such registration statement, as amended at the time of any Terms Agreement referred to in Section 3, is hereinafter referred to as the "Registration Statement", and the prospectus included in such Registration Statement, as supplemented as contemplated by Section 3 to reflect the terms of the Securities and the terms of offering thereof, as first filed with the Commission pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") of the Rules and Regulations of the Commission (the "Rules and Regulations") under the Securities Act of 1933, as amended (the "Act"), including all material incorporated by reference therein, is hereinafter referred to as the "Prospectus". (b) On the effective date of the registration statement relating to the Securities, such registration statement conformed in all material respects to the requirements of the Act, the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the Rules and Regulations and did not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and on the date of the Terms Agreement referred to in Section 3, the Registration Statement and the Prospectus will conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, and neither of such documents will include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading, except that the foregoing representations do not apply to statements in or omissions from any of such documents based upon written information furnished to the Company by any Underwriter specifically for use therein. (c) Each document filed by the Company pursuant to the Exchange Act which is incorporated by reference in the Prospectus complied when so filed in all material respects with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations thereunder, and each document, if any, hereafter filed and so incorporated by reference in the Prospectus (other than documents incorporated by reference therein relating solely to securities other than the Securities) will comply when so filed in all material respects with the Exchange Act and the rules and regulations thereunder. 3. Purchase and Offering of Securities. The obligation of the ----------------------------------- Company to issue and sell any Registered Securities, the obligation of the Guarantor to guarantee such Registered Securities and the obligation of the Underwriters to purchase the Securities will be set forth in a Terms Agreement (the "Terms Agreement") which shall be in the form of an executed writing (which may be handwritten), and may be evidenced by an exchange of telegraphic, facsimile or any other rapid transmission device designed to produce a written record of communications transmitted at the time the Company determines to sell the Securities. The Terms Agreement will incorporate by reference the provisions of this Agreement, except as otherwise provided therein, and will specify the firm or firms which will be Underwriters, the names of any Representatives, the aggregate principal amount of the Registered Securities, the principal amount of Registered Securities to be purchased by each Underwriter, the initial public offering price of the Registered Securities, the purchase price to be paid by the Underwriters and the terms of the Registered Securities not already specified in the Indenture, including, but not limited to, dates of payment -2- and rate of interest, if any, maturity, any redemption or repayment provisions and any sinking fund requirements and whether any of the Securities may be sold to institutional investors pursuant to Delayed Delivery Contracts (as defined below). The Terms Agreement will also specify the time and date of delivery and payment (such time and date, or such other time not later than seven full business days thereafter as the Representatives, the Company and the Guarantor agree as the time for payment and delivery, being herein and in the Terms Agreement referred to as the "Closing Date"), the place of delivery and payment and any details of the terms of offering that should be reflected in the prospectus supplement relating to the offering of the Securities. The obligations of the Underwriters to purchase the Securities will be several and not joint. It is understood that the Underwriters propose to offer the Securities for sale as set forth in the Prospectus. The Securities delivered to the Underwriters on the Closing Date will be in definitive fully registered form, in such denominations and registered in such names as the Underwriters may request. If the Terms Agreement provides for sales of Securities pursuant to delayed delivery contracts, the Company and the Guarantor authorize the Underwriters to solicit offers to purchase Securities pursuant to delayed delivery contracts substantially in the form of Annex II attached hereto ("Delayed Delivery Contracts") with such changes therein as the Company and the Guarantor may authorize or approve. Delayed Delivery Contracts are to be with institutional investors, including commercial and savings banks, insurance companies, pension funds, investment companies and educational and charitable institutions. On the Closing Date, the Company or the Guarantor will pay, as compensation, to the Representatives for the accounts of the Underwriters, the fee set forth in such Terms Agreement in respect of the principal amount of Securities to be sold pursuant to Delayed Delivery Contracts ("Contract Securities"). The Underwriters will not have any responsibility in respect of the validity or the performance of Delayed Delivery Contracts. If the Company and the Guarantor executes and delivers Delayed Delivery Contracts, the Contract Securities will be deducted from the Securities to be purchased by the several Underwriters and the aggregate principal amount of Securities to be purchased by each Underwriter will be reduced pro rata in proportion to the principal amount of Securities set forth opposite each Underwriter's name in such Terms Agreement, except to the extent that the Representatives determine that such reduction shall be otherwise than pro rata and shall so advise the Company. The Company will advise the Representatives not later than 5:00 p.m., New York time, on the business day prior to the Closing Date of the principal amount of Contract Securities. 4. Certain Agreements of the Company and the Guarantor. Each of the --------------------------------------------------- Company and the Guarantor, jointly and severally, agrees with the several Underwriters that it will furnish to _____________________, counsel for the Underwriters ("Underwriter's Counsel"), one signed copy of the registration statement relating to the Securities, including all exhibits, in the form it became effective and of all amendments thereto and that, in connection with each offering of Securities: (a) The Company and the Guarantor will file the Prospectus with the Commission pursuant to and in accordance with Rule 424(b). (b) During the time when a prospectus relating to the Securities is required to be delivered under the Act, (i) the Company or the Guarantor will advise the Representatives promptly of any proposal to amend or supplement the Registration -3- Statement or the Prospectus and will afford the Representatives a reasonable opportunity to comment on any such proposed amendment or supplement and (ii) the Company will also advise the Representatives promptly of the filing of any such amendment or supplement and of the institution by the Commission of any stop order proceedings in respect of the Registration Statement or of any part thereof and will use its best efforts to prevent the issuance of any such stop order and to obtain as soon as possible its lifting, if issued. (c) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Company and the Guarantor promptly will prepare and file with the Commission an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives' consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 5. (d) The Company will make generally available to its security holders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the Rules and Regulations (including, at the option of the Company, Rule 158 under the Act). (e) The Company and the Guarantor will furnish to the Representatives copies of the Registration Statement, including all exhibits, any related prospectus, any related preliminary prospectus supplement and the Prospectus and, during the time when a prospectus relating to the Registered Securities is required to be delivered under the Act, all amendments and supplements to such documents (other than those solely relating to securities other than the Securities), in each case as soon as available and in such quantities as are reasonably requested. (f) The Company and the Guarantor will arrange for the qualification of the Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions as the Representatives designate and will continue such qualifications in effect so long as required for the distribution; provided, however, that in no event shall -------- ------- either the Company or the Guarantor be required to qualify as a foreign corporation or as a dealer in securities or to file a general or unlimited consent for service of process in any such jurisdiction. (g) The Company and the Guarantor will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company's and the Guarantor's counsel and accountants in connection with the registration of the Securities under the Act -4- and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any preliminary prospectus supplement and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing any Agreement among Underwriters, this Agreement, any Terms Agreement, any Indenture, any Delayed Delivery Contracts, any Blue Sky and Legal Investment Memoranda and any other documents in connection with the offering, purchase, sale and delivery of the Securities; (iii) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as provided in Section 4(f), including the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky and legal investment surveys; (iv) any fees charged by securities rating services for rating the Securities; (v) any filing fees incident to any required review by the National Association of Securities Dealers, Inc. of the terms of the sale of the Securities; (vi) the cost of preparing the Securities; (vii) the fees and expenses of any Trustee and any agent of any Trustee and the fees and disbursements of counsel for any Trustee in connection with any Indenture and the Securities; and (viii) all other costs and expenses incident to the performance of its obligations hereunder and under any Delayed Delivery Contracts which are not otherwise specifically provided for in this Section; provided, however, that, except as provided in this Section, Section 6 and Section 8 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they may make. (h) For a period beginning at the time of execution of the Terms Agreement and ending the earlier of (i) the termination of trading restrictions for the Securities, as notified to the Company and the Guarantor by the Representatives, and (ii) the Closing Date, without the prior consent of the Representatives, the Company and the Guarantor will not offer, sell, contract to sell or otherwise dispose of any securities substantially similar to the Securities. 5. Conditions of the Obligations of the Underwriters. The ------------------------------------------------- obligations of the several Underwriters to purchase and pay for the Securities will be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor herein, to the accuracy of the written statements of the officers of the Company and the Guarantor made pursuant to the provisions hereof, to the performance by each of the Company and the Guarantor of its obligations hereunder and to the following additional conditions precedent: (a) The Representatives shall have received a letter, dated the Closing Date, of Arthur Andersen & Co., confirming that they are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder and stating in effect that: (i) in their opinion, the financial statements and schedules audited by them and included in the Prospectus comply in form in all material respects with the applicable accounting requirements of the Act and the related published Rules and Regulations; -5- (ii) they have read the unaudited financial statements included in the Prospectus; (iii) on the basis of the reading referred to in (ii) above, a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that: (A) the unaudited financial statements, if any, included or incorporated by reference in the Prospectus do not comply in form in all material respects with the applicable accounting requirements of the Act and the related published Rules and Regulations and the Exchange Act and the related published rules and regulations thereunder, as applicable, or are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Company's Annual Report on Form 10-K for the most recent fiscal year; or (B) the unaudited capsule information, if any, included in the Prospectus does not agree with the amounts set forth in the unaudited consolidated financial statements from which it was derived or was not determined on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Company's Annual Report on Form 10-K for the most recent fiscal year; or (C) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than five days prior to the Closing Date, there was any material change in the consolidated capital stock (other than issuances of capital stock upon exercise of options and director stock grants) or any material increase in consolidated long-term debt of the Company and its subsidiaries or, at the date of the latest available balance sheet read by such accountants, there was any material decrease in consolidated net current assets or net assets, as compared with amounts shown on the latest balance sheet included or incorporated by reference in the Prospectus; or (D) for the period from the date of the latest income statement included or incorporated by reference in the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year and with the period of corresponding length ended the date of the latest income statement included in the Prospectus, in consolidated sales, net income or in the ratio of earnings to fixed charges; -6- except in all cases set forth in clauses (C) and (D) above for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; and (iv) they have carried out specified procedures, as requested by the Underwriters, for the purpose of comparing specified dollar amounts (or percentages derived from such dollar amounts) and other financial information included in the Prospectus (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. All financial statements and schedules included in material incorporated by reference into the Prospectus shall be deemed included in the Prospectus for purposes of this subsection. (b) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a). No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company, the Guarantor or any Underwriter, shall be threatened by the Commission. (c) Subsequent to the execution of the Terms Agreement, there shall not have occurred (i) any downgrading in the rating of any senior debt securities of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, Inc., or any setting of minimum prices for trading on such exchange; (iii) any general banking moratorium declared by Federal or New York authorities; or (iv) any outbreak or material escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of a majority in interest of the Underwriters, including any Representatives, the effect of any such outbreak, escalation, declaration, calamity or emergency is so material and adverse so as to make it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities. (d) The Representatives shall have received an opinion, dated the Closing Date, of White & Case LLP, counsel for the Company and the Guarantor, to the effect that: -7- (i) Each of the Company and the Guarantor has been duly incorporated and is an existing corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Prospectus; (ii) The Indenture has been duly authorized, executed and delivered by each of the Company and the Guarantor and has been duly qualified under the Trust Indenture Act; the Securities have been duly authorized; the Securities other than any Contract Securities have been duly executed, issued and delivered; the Indenture and the Securities other than any Contract Securities constitute, and any Contract Securities, when executed, authenticated, issued and delivered in the manner provided in the Indenture and sold pursuant to Delayed Delivery Contracts, will constitute, valid and legally binding obligations of the Company and the Guarantor, as the case may be, enforceable in accordance with their terms, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent transfer or other similar laws affecting the enforcement of creditors' rights generally, or by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law), provided, however, that such counsel need express no opinion with respect to U.S. federal and state laws dealing with fraudulent conveyances; and the Securities other than any Contract Securities conform, and any Contract Securities, when issued and delivered in the manner provided for in the Indenture and sold pursuant to Delayed Delivery Contracts, will conform, in all material respects to the description thereof contained in the Prospectus; (iii) No consent, approval, authorization or order of, or filing with, any New York State or Federal governmental agency or body or any New York State or Federal court having jurisdiction over either the Company or the Guarantor or any of their material properties is required to be obtained or made by either the Company or the Guarantor for the consummation of the transactions contemplated by the Terms Agreement (including the provisions of this Agreement) in connection with the issuance or sale of the Securities by the Company and the Guarantor, except such as have been obtained and made under the Act and the Trust Indenture Act and such as may be required under state securities or Blue Sky laws (as to which such counsel need express no opinion); (iv) The execution, delivery and performance of the Indenture, the Terms Agreement (including the provisions of this Agreement) and any Delayed Delivery Contracts and the issuance and sale of the Securities and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, the Restated Certificate of Incorporation or By-Laws of either the Company or the Guarantor or any statute, rule, regulation or order applicable to the Company, the Guarantor or any of their subsidiaries of which such counsel is aware of any federal or New York State governmental agency or body or court having jurisdiction over the Company, the Guarantor or any of their material properties (other than those that may be -8- required under the Act and under applicable state securities or Blue Sky laws as to which such counsel need express no opinion) and each of the Company and the Guarantor has full corporate power and authority to authorize, issue and sell the Securities as contemplated by the Terms Agreement (including the provisions of this Agreement); (v) The registration statement relating to the Securities, as of its effective date, the Registration Statement and the Prospectus, as of the date of the Terms Agreement, and any amendment or supplement thereto, as of its date, appeared on their face to comply as to form in all material respects with the requirements of the Act, the Trust Indenture Act and the Rules and Regulations thereunder; nothing has come to such counsel's attention which causes it to believe that such registration statement, as of its effective date, the Registration Statement or the Prospectus, as of the date of the Terms Agreement, or any such amendment or supplement, as of its date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading; it being understood that such counsel need express no opinion as to the financial statements and schedules or other financial or statistical data contained in any of the above-mentioned documents; and (vi) The Terms Agreement (including the provisions of this Agreement) and any Delayed Delivery Contracts have been duly authorized, executed and delivered by each of the Company and the Guarantor. (e) The Representatives shall have received an opinion, dated the Closing Date, from Joy E. Hansen, Vice President and General Counsel of the Company and the Guarantor, to the effect that: (i) Each of the Company and the Guarantor and has been duly qualified to do business and is in good standing as a foreign corporation in all jurisdictions in which its ownership of property or the conduct of their respective businesses require such qualification (except where the failure to so qualify would not have a material adverse effect upon the Company or the Guarantor and their subsidiaries taken as a whole), and has all power and authority necessary to own its properties and conduct the businesses in which it is engaged as described in the Prospectus; (ii) The execution, delivery and performance of the Indenture, the Terms Agreement (including the provisions of this Agreement) and any Delayed Delivery Contracts and the issuance and sale of the Securities and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under any order, rule or regulation applicable to the Company, the Guarantor or any of their subsidiaries of which such counsel is aware of any court or governmental agency or body having -9- jurisdiction over the Company, the Guarantor or any of their material properties or, any material agreement or instrument to which the Company, the Guarantor or any of their material subsidiaries is a party or by which the Company, the Guarantor or any such subsidiary is bound or to which any of the properties of the Company, the Guarantor or any such subsidiary is subject, or the Restated Certificate of Incorporation or By-Laws of the Company, the Guarantor or any such subsidiary; (iii) Such counsel is not aware of any consent, approval, authorization or order of, or filing with, any governmental agency or body or any court having jurisdiction over the Company, the Guarantor or any of their material properties that is required to be obtained or made by the Company or the Guarantor for the consummation of the transactions contemplated by the Terms Agreement (including the provisions of this Agreement) in connection with the issuance or sale of the Securities by the Company and the Guarantor, except such as may be required under the Act, the Trust Indenture Act and under state securities or Blue Sky laws (as to which such counsel need express no opinion); (iv) The documents incorporated by reference in the Prospectus (other than the financial statements and related schedules and other financial and statistical data contained therein, as to which such counsel needs express no opinion), when they were filed with the Commission complied as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder; and nothing has come to such counsel's attention which causes it to believe that any of such documents, when such documents were so filed contained an untrue statement of a material fact and omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading; (v) Nothing has come to such counsel's attention which causes it to believe that the registration statement relating to the Registered Securities, as of its effective date, the Registration Statement or the Prospectus, as of the date of the Terms Agreement, or any such amendment or supplement, as of its date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading; it being understood that such counsel need express no opinion as to the financial statements and schedules or other financial or statistical data contained in any of the above-mentioned documents; and (vi) The statements contained in the Company's Annual Reports on Form 10-K under the heading "Item 3. Legal Proceedings", and the statements contained in the Company's Quarterly Reports on Form 10-Q under the heading "Item 1. Legal Proceedings", in each case, which are incorporated or deemed to be incorporated by reference in the Prospectus, insofar as such statements constitute a -10- summary of the legal documents, matters or proceedings referred to therein, fairly present the information called for with respect to such legal documents, matters and proceedings. (f) The Representatives shall have received from Underwriter's Counsel, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Company and the Guarantor, the validity of the Securities, the Registration Statement, the Prospectus and other related matters as they may require, and the Company and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (g) The Representatives shall have received a certificate, dated the Closing Date, of the Chairman of the Board of Directors, President and Chief Executive Officer, the Executive Vice President, any Senior Vice President or any Vice President and a principal financial or accounting officer from each of the Company and the Guarantor in which such officers, to their knowledge, shall state that the representations and warranties of the Company and the Guarantor, as the case may be, in this Agreement are true and correct at and as of the Closing Date, that the Company and the Guarantor, as the case may be, has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted by the Commission and that, subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change in the financial position or results of operation of the Company and its subsidiaries taken as a whole except as set forth in or contemplated by the Prospectus or as described in such certificate. Each of the Company and the Guarantor will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as they reasonably request. 6. Indemnification and Contribution. (a) Each of the Company and -------------------------------- the Guarantor will jointly and severally indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, the Prospectus, or any amendment or supplement thereto, or any related preliminary prospectus or preliminary prospectus supplement, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that neither the Company nor the Guarantor will be -------- ------- liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any of such documents in reliance upon and in conformity with written -11- information furnished to either the Company or the Guarantor by any Underwriter specifically for use therein; and provided, further, that neither the Company -------- ------- nor the Guarantor shall be liable to any Underwriter under the indemnity agreement in this subsection (a) with respect to any preliminary prospectus or preliminary prospectus supplement to the extent that any such loss, claim, damage or liability of such Underwriter results from the fact that such Underwriter sold designated securities to a person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the Prospectus as then amended or supplemented in any case where such delivery is required by the Act if either the Company or the Guarantor has previously furnished copies thereof to such Underwriter and the loss, claim, damage or liability results from an untrue statement or omission of a material fact contained in the preliminary prospectus which was corrected in the Prospectus (as then amended, supplemented or modified). (b) Each Underwriter will indemnify and hold harmless the Company and the Guarantor against any losses, claims, damages or liabilities to which either the Company or the Guarantor may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, the Prospectus, or any amendment or supplement thereto, or any related preliminary prospectus or preliminary prospectus supplement, or arise out of or are based upon the omission or the alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company or the Guarantor by such Underwriter specifically for use therein, and will reimburse any legal or other expenses reasonably incurred by the Company or the Guarantor in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred. (c) Promptly after receipt by an indemnified party under this Section of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under subsection (a) or (b) above, notify the indemnifying party of the commencement thereof; but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under subsection (a) or (b) above. In case any such action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein, and to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement. -12- (d) If the indemnification provided for in this Section is unavailable (other than as a result of the provisos contained in subsection (a)) or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to in subsection (a) or (b) above in such proportion as is appropriate to reflect the relative fault of the Company and the Guarantor on the one hand and of the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations, including relative benefit. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, the Guarantor or the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company, the Guarantor and the Underwriters agree that it would not be just and equitable if contributions pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligations in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint. (e) The obligations of each of the Company and the Guarantor under this Section shall be in addition to any liability which it may otherwise have and shall extend, upon the same terms and conditions, to each person, if any, who controls any Underwriter within the meaning of the Act; and the obligations of the Underwriters under this Section shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each director of the Company and the Guarantor, to each officer of the Company and the Guarantor who has signed the Registration Statement and to each person, if any, who controls the Company or the Guarantor within the meaning of the Act. 7. Default of Underwriters. (a) If any Underwriter shall default in ----------------------- its obligation to purchase the Securities which it has agreed to purchase under the Terms Agreement relating to such Securities, the Representatives may in their discretion arrange for themselves or another party or other parties to purchase such Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter the Representatives do not arrange for the purchase of such Securities, then the Company shall be entitled to a further period of thirty-six -13- hours within which to procure another party or other parties satisfactory to the Representatives to purchase such Securities on such terms. In the event that, within the respective prescribed period, the Representatives notify the Company that they have so arranged for the purchase of such Securities, or the Company notifies the Representatives that it has so arranged for the purchase of such Securities, the Representatives or the Company shall have the right to postpone the Closing Date for such Securities for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus as amended or supplemented, or in any other documents or arrangements, and each of the Company and the Guarantor agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in the reasonable opinion of the Representatives may thereby be made necessary. The term "Underwriter" as used in this Agreement shall include any person substituted under this section with like effect as if such person had originally been a party to the Terms Agreement with respect to such Securities. (b) If, after giving effect to any arrangements for the purchase of the Registered Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate principal amount of such Registered Securities which remains unpurchased does not exceed one-tenth of the aggregate principal amount of the Registered Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Registered Securities which such Underwriter agreed to purchase under the Terms Agreement relating to such Registered Securities and, in addition, to require each non- defaulting Underwriter to purchase its pro rata share (based on the principal amount of Registered Securities which such Underwriter agreed to purchase under such Terms Agreement) of the Registered Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. (c) If, after giving effect to any arrangements for the purchase of the Registered Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate principal amount of Registered Securities which remains unpurchased exceeds one-tenth of the aggregate principal amount of the Registered Securities, as referred to in subsection (b) above, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Registered Securities of a defaulting Underwriter or Underwriters, then the Terms Agreement relating to such Registered Securities shall thereupon terminate, without liability on the part of any non-defaulting Underwriter, the Company or the Guarantor, except for the expenses to be borne by the Company, the Guarantor and the Underwriters as provided in Section 4(g) and the indemnity and contribution agreements in Section 6; but nothing herein shall relieve a defaulting Underwriter from liability for its default. 8. Survival of Certain Representations and Obligations. The --------------------------------------------------- respective indemnities, agreements, representations, warranties and other statements of the Company, the Guarantor or their officers and of the several Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the Company, the Guarantor or any of their respective representatives, officers or directors or any controlling person and will survive -14- delivery of and payment for the Securities. If the Terms Agreement is terminated pursuant to Section 7 or if for any reason the purchase of the Securities by the Underwriters under the Terms Agreement is not consummated, the Company and the Guarantor shall remain responsible for the expenses to be paid or reimbursed by it pursuant to Section 4(g) and the respective obligations of the Company, the Guarantor and the Underwriters pursuant to Section 6 shall remain in effect. If the purchase of the Securities by the Underwriters is not consummated for any reason, other than solely because of the termination of this Agreement pursuant to Section 7 or the occurrence of any event specified in clause (ii), (iii) or (iv) of Section 5(c), the Company and the Guarantor will reimburse the Underwriters for all out-of-pocket expenses (including fees and disbursements of counsel) reasonably incurred by them in connection with the offering of the Securities, but the Company and the Guarantor shall be under no further liability to any Underwriter except as provided in Section 6. 9. Notices. All statements, requests, notices and agreements ------- hereunder shall be in writing and if to the Underwriters shall be sufficient in all respects, if delivered or sent by first class mail, telex, or facsimile transmission (confirmed in writing by overnight courier sent on the day of such facsimile transmission) to the address of the Representatives as set forth in the Terms Agreement; and if to the Company or the Guarantor shall be sufficient in all respects if delivered or sent by first class mail, telex, or facsimile transmission (confirmed in writing by overnight courier sent on the day of such facsimile transmission) to the address of the Company and the Guarantor set forth in the Registration Statement, Attention: Secretary. 10. Successors. This Agreement will inure to the benefit of and be ---------- binding upon the Company, the Guarantor and such Underwriters as are identified in Terms Agreements and their respective successors and the officers and directors and controlling persons referred to in Section 6, and no other person will acquire or have any right or obligation hereunder or by virtue of this Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase. 11. Representatives. In all dealings under any Terms Agreement and --------------- hereunder, the Representatives, if any, shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any underwriter made or given by the Representatives. 12. Time of Essence. Time shall be of the essence of each Terms --------------- Agreement. As used herein the term "business day" shall mean any day when the Commission's office in Washington, D.C. is open for business. 13. GOVERNING LAW. THIS AGREEMENT AND EACH TERMS AGREEMENT SHALL BE ------------- CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. 14. Counterparts. This Agreement and each Terms Agreement may be ------------ executed by any one or more of the parties hereto and thereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument. -15- If the foregoing is in accordance with your understanding, please sign and return three counterparts hereof. Very truly yours, NEWMONT MINING CORPORATION By: _____________________________ Name: Title: NEWMONT GOLD COMPANY By: _____________________________ Name: Title: Accepted as of the date hereof: [Names of Underwriters] By: [Representatives] By: ______________________ Name: Title: On behalf of each of the Underwriters -16- ANNEX I ------- NEWMONT MINING CORPORATION, Issuer NEWMONT GOLD COMPANY, Guarantor Debt Securities Terms Agreement --------------- _________, ____ [Names and Addresses of Representatives] Dear Sirs: Newmont Mining Corporation, a Delaware corporation (the "Company"), proposes, subject to the terms and conditions stated herein and in the Underwriting Agreement, dated _________ __, ____ (the "Underwriting Agreement"), between the Company and Newmont Gold Company, a Delaware corporation (the "Guarantor"), on the one hand and __________________, on the other hand, to issue and sell to the Underwriters named in Schedule I hereto (the "Underwriters") the securities specified in Schedule II hereto (the "Registered Securities"). Payment of principal of, and interest, if any, and premium, if any, on the Securities will be unconditionally guaranteed by the Guarantor pursuant to the terms and conditions of the guaranty issued under the Indenture (the "Guaranty"). The Registered Securities and related Guaranty are referred to as the "Securities". Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Terms Agreement, except that, if this Terms Agreement and the Underwriting Agreement are dated different dates, each representation and warranty with respect to the Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a representation and warranty as of the date of the Underwriting Agreement in relation to the Prospectus (as therein defined) and also a representation and warranty as of the date of this Terms Agreement in relation to the Prospectus as amended or supplemented relating to the Securities which are the subject of the Terms Agreement. Each reference to the Representatives herein and in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representatives designated to act on behalf of each of the Underwriters of Securities are set forth in Schedule II hereto. Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Annex I Page 2 Company, at the time and place and at a purchase price to the Underwriters set forth in Schedule II hereto, the principal amount of Securities set forth opposite the name of such Underwriter in Schedule I hereto, less the principal amount of Securities covered by Delayed Delivery Contracts, if any, as may be specified in such Schedule II. The Guarantor agrees, pursuant to the terms and conditions set forth in the Indenture, to endorse the Guaranty on such Securities. If the foregoing is in accordance with your understanding, please sign and return to us _______ counterparts hereof, and upon acceptance hereof by you, on behalf of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters, the Company and the Guarantor. It is understood that your acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be supplied to the Company and the Guarantor upon request. Very truly yours, NEWMONT MINING CORPORATION By: __________________________ Name: Title: NEWMONT GOLD COMPANY By: __________________________ Name: Title: Accepted as of the date hereof: By: _________________________ On behalf of each of the Underwriters SCHEDULE I Principal Amount of Designated Securities Underwriter to be Purchased ----------- --------------------- ------------ Total......................... $ ============ SCHEDULE II Title of Securities: [ %] [Floating Rate] [Zero Coupon] Guaranteed [Notes] [Debentures] due Aggregate principal amount: $____________ Price to Public: _____% of the principal amount of the Securities, plus accrued interest [, if any,] from _________ to __________ [and accrued amortization, if any, from __________ to ____________] Purchase Price by Underwriters: _____% of the principal amount of the Securities, plus accrued interest [,if any,] from _________ to __________ [and accrued amortization, if any, from __________ to ____________] Specified funds for payment of purchase price: [New York] Clearing House funds Indenture: Indenture, dated as of __________, ____, [, as supplemented by ________,] between the Company and ___________________, as Trustee Maturity: Interest Rate: [ %] [Zero Coupon] [See Floating Rate Provisions] Interest Payment Dates: [months and dates] Redemption Provisions: [No provisions for redemption] [The Securities may be redeemed, otherwise than through the sinking fund, in whole or in part at the option of the Company, in the amount of $ _____ or an integral multiple thereof, __________] [on or after _________, _________ at the following redemption prices (expressed in percentages of principal amount): If [redeemed on or before _________, ___ %, and if] redeemed during the 12-month period beginning ___________, Schedule II Page 2 Redemption Year Price ---- ----- and thereafter at 100% of principal amount, together in each case with accrued interest to the redemption date] [on any interest payment date falling on or after ____________, ___________, at the election of the Company, at a redemption price equal to the principal amount thereof, plus accrued interest to the date of redemption]. [Other possible redemption provisions, such as mandatory redemption upon occurrence of certain events or redemption for changes in tax law]. [Restriction on refunding] Sinking Fund Provisions: [No sinking fund provisions] [The Securities are entitled to the benefit of a sinking fund to retire $ _______ principal amount of Securities on ______ in each of the years _____ through ____ at 100% of their principal amount plus accrued interest] [, together with [cumulative] [non-cumulative] redemptions at the option of the Company to retire an additional $ _________ principal amount of Securities in the years ____ through ____ at 100% of their principal amount plus accrued interest.] [If Securities are extendable debt Securities, insert -- Extendable provisions: Securities are repayable on ______, _____ [insert date and years], at the option of the holder, at their principal amount with accrued interest. Initial annual interest rate will be ___%, and thereafter annual interest rate will be adjusted on ______, and _______ to a rate not less than ___ % of the effective annual interest rate on U.S. Treasury obligations with _________-year maturities as of the [insert date 15 days prior to maturity date] prior to such [insert maturity date].] [If Securities are Floating Rate debt Securities, insert -- Floating rate provisions: Initial annual interest rate will be __% through ____________ [and thereafter will be adjusted [monthly] [on each _____, ________, and ___________] [to an annual rate of ______ % above the average rate for ______ -year [month] [securities] [certificates of deposit] issued by _________ and ___________________ [insert names of banks].] [and the annual interest rate [thereafter] [from ______________ through ____________] will be the interest yield equivalent of the weekly average per annum market discount rate for _____-month Treasury bills plus ___% of Interest Differential (the excess, if any, of (i) Schedule II Page 3 then current weekly average per annum secondary market yield for ______-month certificates of deposit over (ii) then current interest yield equivalent of the weekly average per annum market discount rate for ______-month Treasury bills); [from _________ and thereafter the rate will be the then current interest yield equivalent plus ____ % of Interest Differential].] Closing Date: [Time and date], ____ Closing Location: Delayed Delivery: [None] [Underwriters' commission shall be ___ % of the principal amount of Securities for which Delayed Delivery Contracts have been entered into. Such commission shall be payable to the order of _______________________________________.] Names and addresses of Representatives: Address for Notices, etc.: [Other Terms]/1/ _______________________ /1/ A description of particular tax, accounting or other unusual features of the Securities should be set forth, or referenced to an attached and accompanying description, if necessary to the issuer's understanding of the transaction contemplated. Such a description might appropriately be in the form in which such features will be described in the Prospectus for the offering. ANNEX II -------- (Three copies of this Delayed Delivery Contract ---------------------------------------------- should be signed and returned to the address -------------------------------------------- shown below so as to arrive not later than ------------------------------------------ 9:00 A.M., New York time, on ---------------------------- __________ ____, ____*.) DELAYED DELIVERY CONTRACT ------------------------- [Insert date of initial ---------------------- public offering] --------------- NEWMONT MINING CORPORATION c/o [Name and Address of Representative] Gentlemen: The undersigned hereby agrees to purchase from Newmont Mining Corporation, a Delaware corporation (the "Company"), and the Company agrees to sell to the undersigned, [If one delayed closing, insert--as of the date hereof, ------------------------------ for delivery on ______________, ____ ("Delivery Date"),] $__________ principal amount of the Company's [Insert title of securities] (the -------------------------- "Securities"), guaranteed by Newmont Gold Company, a Delaware corporation (the "Guarantor"), offered by the Company and Guarantor's Prospectus dated _____, ___ and a Prospectus Supplement dated _____, ___ relating thereto, receipt of copies of which is hereby acknowledged, at ___% of the principal amount thereof plus accrued interest, if any, and on the further terms and conditions set forth in this Delayed Delivery Contract ("Contract"). [If two or more delayed closings, insert the following: ----------------------------------------------------- ________________ * Insert date which is third full business day prior to Closing Date under ------------------------------------------------------------------------ the Terms Agreement. ------------------- Annex II Page 2 [The undersigned will purchase from the Company as of the date hereof, for delivery on the dates set forth below, Securities in the principal amounts set forth below: Delivery Date Principal Amount ------------- ---------------- _________________ __________________ _________________ __________________ Each of such delivery dates is hereinafter referred to as a Delivery Date.] Payment for the Securities that the undersigned has agreed to purchase for delivery on [the] [each] Delivery Date shall be made to the Company or its order by certified or official bank check in [New York] Clearing House (next day) funds at the office of ____________________ at ______.M. on [the] [such] Delivery Date upon delivery to the undersigned of the Securities to be purchased by the undersigned [for delivery on such Delivery Date] in definitive fully registered form and in such denominations and registered in such names as the undersigned may designate by written or telegraphic communication addressed to the Company not less than five full business days prior to [the] [such] Delivery Date. It is expressly agreed that the provisions for delayed delivery and payment are for the sole convenience of the undersigned; that the purchase hereunder of Securities is to be regarded in all respects as a purchase as of the date of this Contract; that the obligation of the Company to make delivery of and accept payment for, and the obligation of the undersigned to take delivery of and make payment for, Securities on [the] [each] Delivery Date shall be subject only to the conditions that (1) investment in the Securities shall not at [the] [such] Delivery Date be prohibited under the laws of any jurisdiction in the United States to which the undersigned is subject and (2) the Company shall have sold to the Underwriters the total principal amount of the Securities less the principal amount thereof covered by this and other similar Contracts. The undersigned represents that its investment in the Securities is not, as of the date hereof, prohibited under the laws of any jurisdiction to which the undersigned is subject and which governs such investment. Promptly after completion of the sale to the Underwriters the Company will mail or deliver to the undersigned at its address set forth below notice to such effect, accompanied by [a copy] [copies] of the opinion[s] of counsel for the Company delivered to the Underwriters in connection therewith. This Contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other. It is understood that the acceptance of any such Contract is in the Company's and the Guarantor's sole discretion and, without limiting the foregoing, need not be on a first-come, first-served basis. If this Contract is acceptable to the Company and the Guarantor, it is requested that the Company and the Guarantor sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a Annex II Page 3 binding contract between the Company, the Guarantor and the undersigned when such counterpart is so mailed or delivered. Yours very truly, ___________________________________________ (Name of Purchaser) By: _______________________________________ ___________________________________________ (Title of Signatory) ___________________________________________ ___________________________________________ (Address of Purchaser) Accepted, as of the above date. NEWMONT MINING CORPORATION By: __________________________ [Insert Title] NEWMONT GOLD COMPANY By: __________________________ [Insert Title] EX-4.4 3 INDENTURE RELATING TO THE SENIOR DEBT SECURITIES EXHIBIT 4.4 NEWMONT MINING CORPORATION, as Issuer NEWMONT GOLD COMPANY, as Guarantor AND CITIBANK, N.A., as Trustee INDENTURE Dated as of [_________, ____] ____________________ GUARANTEED SENIOR DEBT SECURITIES NEWMONT MINING CORPORATION, as Issuer NEWMONT GOLD COMPANY, as Guarantor AND CITIBANK, N.A., as Trustee INDENTURE Dated as of [__________, ____] ____________ Reference is made to the following provisions of the Trust Indenture Act of 1939, as amended, which establish certain duties and responsibilities of the Issuer and the Trustee which are not set forth in this Indenture:
Section Subject Section Section - ------- ------- ------- ------- 310(b) Disqualification of Trustee for 315(c) Duties of claims Trustee in case of conflicting Securityholders default 311 Preferential collection of Trustee 315(d) Provisions relating to responsibility as creditor of Issuer of Trustee 312(a) Periodic filing of information by 315(e) Assessment of costs against litigating Issuer with Trustee Securityholders in certain circumstances 312(b) Access of Securityholders to 316(a) Directions to and waivers by information Securityholders in certain circumstances 313(b) Additional reports of Trustee to 316(b) Prohibition or impairment of right of Securityholders Securityholders to payment 314(c) Evidence of compliance with 316(c) Right of Issuer to set record date conditions precedent for certain purposes 315(a) Duties of Trustee prior to default 317(a) Special Powers of Trustee 315(b) Notice of default from Trustee to 318(a) Provisions of Act to control in case Securityholders of conflict
(i) TABLE OF CONTENTS -----------------
Page ---- ARTICLE ONE DEFINITIONS................................................................. 1 SECTION 1.1 Certain Terms Defined....................................... 1 Attributable Debt....................................................... 2 Board of Directors...................................................... 2 Business Day............................................................ 2 Commission.............................................................. 2 Common Stock............................................................ 2 Consolidated Net Tangible Assets........................................ 2 Conversion Price........................................................ 2 covenant defeasance..................................................... 3 Depositary.............................................................. 3 Dollar or U.S.$......................................................... 3 euro.................................................................... 3 Event of Default........................................................ 3 Exchange Act............................................................ 3 Funded Debt............................................................. 3 Global Security......................................................... 3 Guarantor............................................................... 3 Guaranty................................................................ 4 Holder.................................................................. 4 Indenture............................................................... 4 Interest................................................................ 4 Issuer.................................................................. 4 Market Exchange Rate.................................................... 4 mandatory sinking fund payment.......................................... 4 New York Location....................................................... 4 Officers Certificate.................................................... 4 Opinion of Counsel...................................................... 4 optional sinking fund payment........................................... 4 Original Issue Date..................................................... 5 Original Issue Discount Security........................................ 5 Outstanding............................................................. 5 Overdue Rate............................................................ 5 Person.................................................................. 5 Principal............................................................... 5 Principal Property...................................................... 6
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Page ---- record date........................................................ 6 Register........................................................... 6 Resolution......................................................... 6 Responsible Officer................................................ 6 Restricted Subsidiary.............................................. 6 Securities Act..................................................... 6 Security or Securities............................................. 6 Security registrar................................................. 6 series............................................................. 6 sinking fund payment date.......................................... 7 Subsidiary......................................................... 7 Tranche............................................................ 7 Trust Indenture Act of 1939........................................ 7 Trustee............................................................ 7 U.S. Government Obligations........................................ 7 vice president..................................................... 7 Yield to Maturity.................................................. 7 ARTICLE TWO SECURITIES............................................................. 7 SECTION 2.1 Forms Generally........................................ 7 SECTION 2.2 Form of Face of Security............................... 8 SECTION 2.3 Form of Reverse of Security............................ 10 SECTION 2.4 Form of Notation on Security Relating to Guaranty...... 15 SECTION 2.7 Form of Trustees Certificate of Authentication......... 16 SECTION 2.7 Amount Unlimited; Issuable in Series................... 16 SECTION 2.7 Authentication and Delivery of Securities.............. 19 SECTION 2.8 Execution of Securities................................ 20 SECTION 2.9 Certificate of Authentication.......................... 21 SECTION 2.12 Execution and Delivery of Guaranty..................... 21 SECTION 2.11 Denomination and Date of Securities; Payments of Interest................................... 21 SECTION 2.12 Registration, Transfer and Exchange.................... 22 SECTION 2.13 Mutilated, Defaced, Destroyed, Lost and Stolen Securities...................................... 25 SECTION 2.14 Cancellation of Securities Paid, etc................... 26 SECTION 2.15 Temporary Securities................................... 26 SECTION 2.16 CUSIP Numbers.......................................... 26 SECTION 2.17 Form of Election to Convert............................ 26 ARTICLE THREE COVENANTS OF THE ISSUER................................................. 28 SECTION 3.1 Payment of Principal and Interest...................... 28 SECTION 3.2 Offices for Payments, etc.............................. 28
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Page ---- SECTION 3.3 Paying Agents.......................................... 28 SECTION 3.4 Limitation on Liens.................................... 29 SECTION 3.5 Limitation on Sales and Leasebacks..................... 31 SECTION 3.6 Notice of Default...................................... 32 SECTION 3.7 Calculation of Original Issue Discount................. 32 SECTION 3.8 Reports................................................ 32 SECTION 3.9 Compliance Certificates................................ 33 ARTICLE FOUR REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT......... 33 SECTION 4.1 Events of Default...................................... 33 SECTION 4.2 Payment of Securities on Default; Suit Therefor........ 36 SECTION 4.3 Application of Moneys Collected by Trustee............. 37 SECTION 4.4 Proceedings by Trustee................................. 38 SECTION 4.5 Restoration of Rights on Abandonment of Proceedings.... 38 SECTION 4.6 Proceedings by Securityholders......................... 39 SECTION 4.7 Remedies Cumulative and Continuing..................... 39 SECTION 4.8 Control by Securityholders............................. 40 SECTION 4.9 Waiver of Past Defaults................................ 40 ARTICLE FIVE CONCERNING THE TRUSTEE.................................................. 40 SECTION 5.1 Reliance on Documents, Opinions, etc.; No Requirement for Expenditure of Own Funds............ 40 SECTION 5.2 No Responsibility for Recitals, etc.................... 42 SECTION 5.3 Trustee and Agents May Hold Securities................. 42 SECTION 5.4 Moneys to Be Held in Trust............................. 42 SECTION 5.5 Compensation and Expenses of Trustee................... 43 SECTION 5.6 Right of Trustee to Rely on Officers Certificate, etc.. 43 SECTION 5.7 Eligibility of Trustee................................. 43 SECTION 5.8 Resignation or Removal of Trustee; Appointment of Successor Trustee................................... 44 SECTION 5.9 Acceptance of Appointment by Successor Trustee......... 45 SECTION 5.10 Merger, Conversion, Consolidation or Succession to Business of Trustee................................. 46 SECTION 5.11 Reports by Trustee to Securityholders.................. 46 ARTICLE SIX CONCERNING THE SECURITYHOLDERS.......................................... 47 SECTION 6.1 Action by Securityholders.............................. 47
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Page ---- SECTION 6.2 Proof of Execution by Securityholders.................. 48 SECTION 6.3 Holders to Be Treated as Owners........................ 48 SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding...... 48 SECTION 6.5 Right of Revocation of Action Taken.................... 49 SECTION 6.6 Securityholders Meetings; Purposes..................... 49 SECTION 6.7 Call of Meetings by Trustee............................ 50 SECTION 6.8 Call of Meetings by Issuer or Securityholders.......... 50 SECTION 6.9 Qualifications for Voting.............................. 50 SECTION 6.10 Quorum; Adjourned Meetings............................. 51 SECTION 6.11 Regulations............................................ 51 SECTION 6.12 Voting................................................. 52 SECTION 6.13 No Delay of Rights by Meeting.......................... 52 SECTION 6.14 Written Consent in Lieu of Meeting..................... 52 ARTICLE SEVEN SUPPLEMENTAL INDENTURES................................................. 53 SECTION 7.1 Supplemental Indentures Without Consent of Securityholders..................................... 53 SECTION 7.2 Supplemental Indentures With Consent of Securityholders 54 SECTION 7.3 Effect of Supplemental Indenture....................... 55 SECTION 7.4 Certain Documents to Be Given to Trustee............... 56 SECTION 7.5 Notation on Securities................................. 56 ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE....................... 56 SECTION 8.1 Issuer and Guarantor May Consolidate, etc., on Certain Terms.................................................. 56 SECTION 8.2 Successor Entity to Be Substituted..................... 57 SECTION 8.3 Opinion of Counsel and Officers Certificate to Be Given to Trustee....................................... 58 ARTICLE NINE SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS............... 58 SECTION 9.1 Satisfaction and Discharge of Indenture................ 58 SECTION 9.2 Application by Trustee of Funds Deposited for Payment of Securities............................................. 59 SECTION 9.3 Repayment of Moneys Held by Paying Agent............... 59 SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years................................ 59 SECTION 9.5 Issuers Option to Effect Defeasance or Covenant Defeasance............................................. 60 SECTION 9.6 Defeasance and Discharge............................... 60 SECTION 9.7 Covenant Defeasance.................................... 60 SECTION 9.8 Conditions to Defeasance or Covenant Defeasance........ 61
(iv)
Page ---- SECTION 9.9 Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.......... 62 ARTICLE TEN REDEMPTION OF SECURITIES AND SINKING FUNDS............................... 63 SECTION 10.1 Applicability of Article............................... 63 SECTION 10.2 Notice of Redemption; Selection of Securities.......... 63 SECTION 10.3 Payment of Securities Called for Redemption............ 64 SECTION 10.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption........................... 65 SECTION 10.5 Mandatory and Optional Sinking Funds................... 65 SECTION 10.6 Conversion Arrangement on Call for Redemption.......... 68 ARTICLE ELEVEN CONVERSION OF SECURITIES............................................. 69 SECTION 11.1 General................................................ 69 SECTION 11.2 Right to Convert....................................... 69 SECTION 11.3 Manner of Exercise of Conversion Privilege; Delivery of Common Stock; No Adjustment for Interest or Dividends.............................................. 69 SECTION 11.4. Cash Payments in Lieu of Fractional Shares............. 71 SECTION 11.5. Conversion Price Adjustments; Effect of Reclassification, Mergers, Consolidations and Sales of Assets................................................. 71 SECTION 11.6. Taxes on Shares Issued................................. 75 SECTION 11.7. Shares to be Fully Paid; Compliance with Governmental Requirements; Listing of Common Stock..... 75 SECTION 11.8. Responsibility of Trustee.............................. 75 SECTION 11.9. Covenant to Reserve Shares............................. 75 SECTION 11.10.Other Conversions...................................... 76 ARTICLE TWELVE GUARANTY OF SECURITIES................................................... 76 SECTION 12.1 GUARANTY............................................... 76 SECTION 12.2 Representation and Warranty............................ 77 SECTION 12.3 Subrogation............................................ 77 ARTICLE THIRTEEN MISCELLANEOUS PROVISIONS................................................. 77 SECTION 13.1 Incorporators, Stockholders, Officers and Directors of Issuer Exempt from Individual Liability............. 77
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Page ---- SECTION 13.2 Provisions of Indenture for the Sole Benefit of Parties and Securityholders.......................... 77 SECTION 13.3 Successors and Assigns of Issuer and Guarantor Bound by Indenture................................... 78 SECTION 13.4 Notices and Demands on Issuer, Guarantor, Trustee and Securityholders.................................. 78 SECTION 13.5 Officers Certificates and Opinions of Counsel; Statements to Be Contained Therein................... 79 SECTION 13.6 Official Acts by Successor Entity.................... 79 SECTION 13.7 Payments Due on Saturdays, Sundays and Legal Holidays............................................. 80 SECTION 13.8 NEW YORK LAW TO GOVERN............................... 80 SECTION 13.9 Counterparts......................................... 80 SECTION 13.10 Effect of Headings................................... 80 SECTION 13.11 Conflict with Trust Indenture Act.................... 80
(vi) THIS INDENTURE, dated as of ____ __, 199_ among NEWMONT MINING CORPORATION, a Delaware corporation (the "Issuer"), NEWMONT GOLD COMPANY, a Delaware corporation (the "Guarantor"), and CITIBANK, N.A., a national banking association duly incorporated and existing under the laws of the United States of America (the "Trustee"). W I T N E S S E T H : - - - - - - - - - - WHEREAS, the Issuer has duly authorized the issuance from time to time of its unsecured bonds, debentures, notes and other evidences of indebtedness to be issued in one or more series (the "Securities") up to such principal amount or amounts and denominated in United States dollars or foreign currency or units or composites of two or more thereof as may from time to time be authorized in accordance with the terms of this Indenture and to provide, among other things, for the authentication, delivery and administration thereof, the Issuer has duly authorized the execution and delivery of this Indenture; and WHEREAS, the Guarantor has duly authorized the execution and delivery of this Indenture and deems it appropriate from time to time to issue its guaranty on an unsubordinated basis of the Securities on the terms herein provided; and WHEREAS, all things necessary to make this Indenture, when executed and delivered by the parties hereto, a valid indenture and agreement according to its terms, have been done; NOW, THEREFORE: In consideration of the premises and the purchases of the Securities by the Holders thereof, the Issuer, the Guarantor and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective Holders from time to time of the Securities as follows: ARTICLE ONE DEFINITIONS ----------- SECTION 1.1 Certain Terms Defined. The following terms (except as --------------------- herein otherwise expressly provided or unless the context otherwise clearly requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section. All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939, as amended to the date of this Indenture as originally executed, or the definitions of which in the Securities Act of 1933, as amended to the date of this Indenture as originally executed, are referred to in the Trust Indenture Act of 1939 (except as herein otherwise expressly provided or unless the context otherwise clearly requires), shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of this Indenture. 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. The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular. "Attributable Debt" means, as to any particular lease under which the ----------------- Issuer is at the time liable, at any date as of which the amount thereof is to be determined, the total net amount of rent required to be paid by the Issuer under such lease during the remaining term thereof, discounted from the respective due dates thereof to such date at the rate of interest per annum implicit in the terms of such lease (as determined by any two of the following: the chairman, the president, the executive vice president, any senior vice president, the treasurer, the controller or the secretary of the Issuer) compounded semi-annually. The net amount of rent required to be paid under any such lease for any such period shall be the amount of the rent payable by the lessee with respect to such period, after excluding amounts required to be paid on account of maintenance and repairs, insurance, taxes, assessments, water rates and similar charges. In the case of any lease which is terminable by the lessee upon the payment of a penalty, such net amount shall also include the amount of such penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated. "Board of Directors" means (1) with respect to the Issuer either the ------------------ Board of Directors of the Issuer 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. "Business Day" means, except as otherwise provided pursuant to Section ------------ 2.6 for Securities of any series, any day that is not a Saturday or Sunday and that is not a day on which banking institutions are generally authorized or obligated by law to close in The City of New York. "Commission" means the Securities and Exchange Commission, as from ---------- time to time constituted, created under the Securities Exchange Act of 1934, or if at any time after the execution and delivery of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act of 1939, then the body performing such duties on such date. "Common Stock" means the common stock of the Issuer, par value $1.60 ------------ per share. "Consolidated Net Tangible Assets" means the aggregate amount of -------------------------------- assets (less applicable reserves and other properly deductible items) after deducting therefrom (a) all current liabilities (excluding any thereof which are by their terms extendible or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed and excluding current maturities of long-term indebtedness and capital lease obligations) and (b) all goodwill, all as shown in the most recent consolidated balance sheet of the Issuer and its Subsidiaries computed in accordance with generally accepted accounting principles. "Conversion Price" means, with respect to any series of Securities ---------------- which are convertible into Common stock, the price per share of Common Stock at which the Securities of -2- such series are so convertible as set forth in the Resolution with respect to such series (or in any supplemental indenture entered into pursuant to Article Seven with respect to such series), as the same may be adjusted from time to time in accordance with Section 11.5 (or such supplemental indenture pursuant to Section 11.1). "Corporate Trust Office" means the principal office of the Trustee at ---------------------- which at any time its corporate trust business shall be administered, which office at the date hereof is located at 111 Wall Street, 5/th/ Floor, New York, New York 10005, Attention: Global Agency & Trust Services, or such other address as the Trustee may designate from time to time by notice to the Holders and the Issuer, or the principal corporate trust office of any successor Trustee (or such other address as a successor Trustee may designate from time to time by notice to the Holders and the Issuer). "covenant defeasance" and "defeasance" have the meanings assigned to ------------------- ---------- such terms, respectively, by Sections 9.7 and 9.6. "Depositary" means, with respect to the Securities of any series or ---------- Tranche issuable or issued in the form of one or more Global Securities, the Person designated as Depositary for such Global Securities by the Issuer pursuant to Section 2.7 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Depositary" shall mean or include each Person who is then a Depositary for such Global Securities, and if at any time there is more than one Person designated as Depositary for Global Securities of a particular series or Tranche, "Depositary", as used with respect to the Securities of such series or Tranche, means the Depositary with respect to the particular Global Security or Securities. "Dollar or U.S.$" means the coin or currency of the United States of --------------- America as at the time of payment is legal tender for the payment of public and private debts. "euro" means the currency introduced on January 1, 1999 at the start ---- of the third stage of economic and monetary union pursuant to the treaty establishing the European Community. "Event of Default" means any event or condition specified as such in ---------------- Section 4.1. "Exchange Act" means the Securities Exchange Act of 1934, as amended. ------------ "Funded Debt" means all indebtedness for money borrowed having a ----------- maturity of more than 12 months from the date as of which the amount thereof is to be determined or having a maturity of less than 12 months but by its terms being renewable or extendable beyond 12 months from such date at the option of the borrower. "Global Security" means a Security evidencing all or a part of a --------------- series or Tranche of Securities, issued to the Depositary for such series or Tranche, as the case may be, in accordance with Section 2.7 and bearing the legend prescribed in Section 2.7. "Guarantor" means Newmont Gold Company, a Delaware corporation. --------- -3- "Guaranty" means the agreement of the Guarantor set forth in Article -------- Thirteen and as endorsed (substantially in the form set forth in Section 2.4) on each Security authenticated and delivered hereunder. "Holder", "Holder of Securities", "Securityholder" or other similar ------ -------------------- -------------- terms means a Person in whose name a Security is registered in the Register. "Indenture" means this instrument as originally executed and delivered --------- or, if amended or supplemented as herein provided, as so amended and/or supplemented from time to time, and shall include (i) for all purposes of this instrument and any supplemental indenture, the provisions of the Trust Indenture Act of 1939 that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively, and (ii) the forms and terms of particular series of Securities established as contemplated hereunder. "Interest" means, when used with respect to a non-interest bearing -------- Security, interest payable after the principal thereof has become due and payable whether at maturity, by declaration of acceleration, by call for redemption, pursuant to a sinking fund or otherwise. "Issuer" means Newmont Mining Corporation, a Delaware corporation, ------ until any successor corporation shall have become such pursuant to Article Eight and thereafter "Issuer" shall mean such successor except as otherwise provided in Section 8.2. "mandatory sinking fund payment" has the meaning set forth in Section ------------------------------ 10.5. "Market Exchange Rate" has the meaning set forth in Section 6.1. -------------------- "New York Location" means the location in the Borough of Manhattan, ----------------- The City of New York, at which at any particular time the Trustee receives and redelivers securities, which location at the date of execution of this Indenture is 111 Wall Street, New York, New York 10043. "Officers' Certificate" means when used with respect to the Issuer or --------------------- the Guarantor, a certificate signed by the chairman of the Board of Directors, the president, the executive vice president or any senior vice president and by the treasurer, controller, the secretary of the Issuer or the Guarantor, as the case may be, and delivered to the Trustee. Each such certificate shall include the statements required by the Trust Indenture Act of 1939 or as provided for in Section 13.5, if and to the extent required hereby. "Opinion of Counsel" means an opinion in writing signed by legal ------------------ counsel who may be an employee of or counsel to the Issuer or the Guarantor, and who shall be satisfactory to the Trustee. Each such opinion shall include the statements required by the Trust Indenture Act of 1939 or as provided for in Section 13.5, if and to the extent required hereby. "optional sinking fund payment" has the meaning set forth in Section ----------------------------- 10.5. -4- "Original Issue Date" of any Security (or portion thereof) means the ------------------- earlier of (a) the date of such Security or (b) the date of any Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange or substitution. "Original Issue Discount Security" means any Security that provides -------------------------------- for an amount less than the principal amount thereof to be due and payable upon redemption or a declaration of acceleration of the maturity thereof pursuant to Section 4.1. "Outstanding" (except as otherwise required by the Trust Indenture Act ----------- of 1939), when used with reference to Securities, shall, subject to the provisions of Section 6.4, mean, as of any particular time, all Securities theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (b) Securities, or portions thereof, which have become due and for the payment or redemption of which monies in the necessary amount shall have been theretofore deposited in trust with the Trustee or with any paying agent (other than the Issuer) or shall have been set aside, segregated and held in trust by the Issuer for the Holders of such Securities (if the Issuer shall act as its own paying agent); and (c) Securities in lieu of or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.11, or which shall have been paid pursuant to Section 2.11. In determining whether the Holders of the requisite principal amount of Outstanding Securities of any or all series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount that shall be deemed to be Outstanding for such purposes in the case of an Original Issue Discount Security or (unless as otherwise established pursuant to Section 2.6) in the case of a Security which provides that an amount other than the face amount thereof will or may be payable upon the maturity thereof or a declaration of acceleration of the maturity thereof shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 4.1. "Overdue Rate" means, unless otherwise specified in the Securities of ------------ any series, the same rate as the rate of interest specified in the Securities of such series or, in the case of a series of Original Issue Discount Securities, the Yield to Maturity of such series of Securities. "Person" means any individual, corporation, partnership, joint ------ venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Principal" whenever used with reference to the Securities or any --------- Security or any portion thereof, shall be deemed to include "and premium, if any". -5- "Principal Property" means any mine, together with any fixtures ------------------ comprising a part thereof, and any plant or other facility, together with any land upon which such plant or other facility is erected and fixtures comprising a part thereof, used primarily for mining or processing, in each case, located in the United States of America and the net book value of which on the date as of which the determination is being made exceeds 5% of Consolidated Net Tangible Assets; provided, that Principal Property shall not include (a) any mine, plant -------- or facility which, in the opinion of the Board of Directors of the Issuer, is not of material importance to the total business conducted by the Issuer and its Subsidiaries as an entirety or (b) any portion of a particular mine, plant or facility which, in the opinion of the Issuer is not of material importance to the use or operation of such mine, plant or facility. "record date" has the meaning set forth in Section 2.11. ----------- "Register" has the meaning set forth in Section 2.12. -------- "Resolution" means a resolution of the Board of Directors, including ---------- without limitation any such resolution by which or pursuant to which any series of Securities is authorized and established pursuant to Section 2.6. "Responsible Officer", when used with respect to the Trustee, means ------------------- any vice president, any senior trust officer, trust officer, any assistant trust officer, or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person's knowledge of and familiarity with the particular subject. "Restricted Subsidiary" means any Subsidiary (a) substantially all of --------------------- the property of which is located, or substantially all of the business of which is carried on, within the United States of America and (b) which owns a Principal Property; provided, that Restricted Subsidiary shall not include any -------- Subsidiary the primary business of which consists of financing operations in connection with leasing and conditional sales transactions on behalf of the Issuer and its Subsidiaries, and/or purchasing accounts receivable and/or making loans secured by accounts receivable or inventory, or which is otherwise primarily engaged in the business of a finance company. "Securities Act" means the Securities Act of 1933, as amended. -------------- "Security or Securities" (except as otherwise required by the Trust -------- ---------- Indenture Act of 1939) has the meaning stated in the first recital of this Indenture or means any Securities that have been issued, authenticated and delivered under this Indenture, as the context may require. "Security registrar" has the meaning set forth in Section 2.12. ------------------ "series", as used in the definitions of "Indenture" and "Overdue Rate" ------ in this Section 1.1 and as used in Section 2.6 (except as used in the first sentence of the second paragraph thereof and in the first and last sentences of the third paragraph thereof), 2.11, 2.12, 2.13, 2.15, 3.1, 3.2, 3.3 (except as used in the fourth paragraph thereof), 10.1, 10.2, 10.3 and 10.5, means "Tranche" for any Securities of a series of Securities consisting of more than one Tranche. -6- "sinking fund payment date" has the meaning set forth in Section 10.5. ------------------------- "Subsidiary" means any corporation or any other entity of which at ---------- least a majority of the outstanding stock or other ownership interests having by the terms thereof ordinary voting power for the election of directors, managers or trustees of such corporation or any other entity or other persons performing similar functions (irrespective of whether or not at the time stock or other ownership interests of any other class or type of such corporation or entity shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by the Issuer, or by one or more other Subsidiaries, or by the Issuer and one or more other Subsidiaries. "Tranche" means all Securities of the same series having the same ------- Original Issue Date, interest rate, maturity, repayment and redemption provisions. "Trust Indenture Act of 1939" (except as otherwise provided in --------------------------- Sections 7.1 and 7.2) means the Trust Indenture Act of 1939, as amended, as in force at the date as of which this Indenture was originally executed; provided, -------- however, that in the event the Trust Indenture Act of 1939 is amended after such - ------- date, "Trust Indenture Act of 1939" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. "Trustee" means the Person identified as "Trustee" in the first ------- paragraph hereof and, subject to the provisions of Article Five, shall also include any successor trustee. If pursuant to the provisions of this Indenture there shall be at any time more than one Trustee hereunder, the term "Trustee" as used with respect to Securities of any series shall mean the Trustee or Trustees with respect to the Securities of that series. "U.S. Government Obligations" has the meaning set forth in Section --------------------------- 9.8. "vice president", (i) when used with respect to the Issuer or the -------------- Guarantor, means the executive vice president and any senior vice president, (ii) when used with respect to the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title of "vice president". "Yield to Maturity" means, in the case of any Original Issue Discount ----------------- Security, the yield to maturity specified in such Security or in a Resolution relating thereto. ARTICLE TWO SECURITIES ---------- SECTION 2.1 Forms Generally. The Securities of each series shall be --------------- substantially in the form set forth in this Article, or in such other form as shall be established by or pursuant to a 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 imprinted or otherwise reproduced thereon such letters, numbers or other marks of identification and such legends or endorsements as may be required to comply with any -7- applicable law, rule or regulation or with the rules of any securities exchange or as may, consistent with the provisions of this Indenture, be determined by the officers executing such Securities, as evidenced by their execution of the Securities. In the case of Securities of any series that are denominated in a coin or currency (including composite currencies or currency units) that is, or may be, replaced by the euro, the form of such Securities may contain such insertions, omissions, substitutions and other variations as may be deemed appropriate or required. In the case of Securities of any series that are convertible at the option of Holders into shares of Common Stock, the form of election to convert shall be substantially in the form set forth in Section 2.17, or in such other form as shall be established by or pursuant to a 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 be imprinted or otherwise reproduced on the Securities of such series. The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities. SECTION 2.2 Form of Face of Security. [If the Security is an ------------------------ Original Issue Discount Security, insert any legend required by the Internal Revenue Code of 1986, as amended and the regulations thereunder.] No. $_________ CUSIP No. ________ NEWMONT MINING CORPORATION [Insert Designation of Series] Newmont Mining Corporation, a corporation duly organized and existing under the laws of the State of Delaware (herein called the "Issuer"), for value received, hereby promises to pay to ________, or registered assigns, the principal sum of ____________________ on _______________ [if the Security is to --------------------- bear interest prior to maturity, insert--, and to pay interest thereon [[insert - --------------------------------------- ------ as applicable--annually or semi-annually or quarterly]] on [[insert appropriate - ------------- -- -- ------------------ interest payment dates]] (the "Interest Payment Dates") in each year, commencing - ---------------------- ___________, [insert--at the rate of __% per annum or, if applicable, insert the -------- ----------------------------- method for determining the adjustable, floating or other form of variable - ------------------------------------------------------------------------- interest rate borne by the Securities] until the principal hereof is paid or - ------------------------------------- made available for payment [if applicable, insert --, and (to the extent that --------------------- the payment of such interest shall be legally enforceable) at the rate of __% per annum on any overdue principal and premium, if any, and on any overdue installment of interest]. Notwithstanding the foregoing, this Security shall bear interest from the most recent Interest Payment Date to which interest in respect hereof has been paid or duly provided for, unless (i) the date hereof is such an Interest Payment Date, in which case from the date hereof, or (ii) no interest has been paid on this Security, in which case from ____________; provided, however, that if the Issuer shall default in the payment of interest due on the date hereof, then this Security shall bear interest -8- from the next preceding Interest Payment Date to which Interest has been paid or, if no interest has been paid on this Security from __________. Notwithstanding the foregoing, if the date hereof is after the _________ [insert if applicable -- or __________] (whether or not a Business Day) (the "Record Date"), [insert if applicable -- as the case may be,] next preceding an Interest Payment Date and before such Interest Payment Date, this Security shall bear interest from such Interest Payment Date; provided, however, that if the Issuer -------- ------- shall default in the payment of interest due on such Interest Payment Date, then this Security shall bear interest from the next preceding Interest Payment Date to which interest has been paid or, if no interest has been paid on this Security, from _________. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, subject to certain exceptions provided in the Indenture referred to on the reverse hereof, be paid to the Person in whose name this Security is registered at the close of business on the Record Date next preceding such Interest Payment Date. Unless otherwise ---------------- specified for the Security pursuant to Section 2.7, insert - [Interest on this - ---------------------------------------------------------- Security will be computed and paid on the basis of a 360-day year of twelve 30- day months.] [If the Security is not to bear interest prior to maturity, insert-- ----------------------------------------------------------------- The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at maturity and in such case the overdue principal of this Security shall bear interest at the rate of __% per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such default in payment to the date payment of such principal has been made or duly provided for. Interest on any overdue principal shall be payable on demand. Any such interest on any overdue principal that is not so paid on demand shall bear interest at the rate of __% per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such demand for payment to the date payment of such interest has been made or duly provided for, and such interest shall also be payable on demand.] To secure the due and punctual payment of the principal [If the ------ Security is to bear interest prior to maturity, insert - and interest], if any, - ------------------------------------------------------ on the Securities of this series and all other amounts payable by the Issuer under the Indenture and the Securities when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the Securities and the Indenture, Newmont Gold Company (the "Guarantor") has unconditionally guaranteed on an unsubordinated basis the Securities pursuant to the terms of the Guaranty endorsed hereon and in the Indenture referred to on the reverse hereof (the "Guaranty"). Payment of the principal of and [if applicable, insert--any such] --------------------- interest on this Security will be made at the office or agency of the Issuer maintained for that purpose in [insert the places of payment], in [insert the ---------------------------- ---------- currency or currencies of payment]; provided, however, that at the option of the - --------------------------------- -------- ------- Issuer payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security register. [If the Security is an extendible security, insert--The Securities of ------------------------------------------------- this series are subject to repayment on [insert provisions with respect to --------------------------------- repayment date or dates] at the option of the Holders thereof exercisable on or - ----------------------- before the _________________, but not prior to the _______________ preceding such ____________, at a repayment price equal to the principal -9- amount thereof to be repaid, together with interest payable thereon to the repayment date, as described on the reverse side hereof.] Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed under its corporate seal. NEWMONT MINING CORPORATION By__________________________________________ Attest: __________________________________ SECTION 2.3 Form of Reverse of Security. --------------------------- NEWMONT MINING CORPORATION This Security is one of a duly authorized issue of securities of the Issuer (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of _________, ___ (herein called the "Indenture"), among the Issuer, the Guarantor and Citibank, N.A., as Trustee (herein called the "Trustee"), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Issuer, the Guarantor, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if -- applicable, insert--limited in aggregate principal amount to _________]. The - ------------------ separate series of Securities may be issued in various aggregate principal amounts, may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking or purchase funds (if any), may have different conversion provisions (if any), may be subject to different repayment provisions (if any), may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided. The Indenture further provides that the Securities of a single series may be issued at various times, with different maturity dates, may bear interest, if any, at different rates, may be subject to -10- different redemption provisions (if any), may be subject to different sinking or purchase funds (if any) and may be subject to different repayment provisions (if any). [If applicable, insert -- The Securities of this series may not be --------------------- redeemed prior to maturity.] [If applicable, insert--The Securities of this series are subject to --------------------- redemption upon not less than 30 nor more than 60 days' notice by mail, [[if -- applicable, insert --(1) on ______ in any year commencing with the year ______ - ------------------ and ending with the year ____ through operation of the sinking fund for this series (as more fully described in the next succeeding paragraph) at [[insert ------ either--a redemption price equal to 100% of the principal amount of the - ------ Securities to be redeemed or the redemption prices for redemption through -- operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below,]], and (2)]] at any time [[if applicable, insert-- --------------------- on or after ________]], as a whole or in part, at the election of the Issuer, at the [[insert either--following redemption prices or redemption prices for ------ ------ -- redemption otherwise than through operation of the sinking fund]] (expressed as percentages of the principal amount): if redeemed [[if applicable, insert--on --------------------- or before ________, __%, and if redeemed]] during the 12-month period beginning ________ of the years indicated, Redemption Price [[If applicable, insert - --------------------- For Redemption Price For Redemption [[if applicable, insert - Otherwise Than --------------------- Through Operation Through Operation Year of the Sinking Fund]] of the Sinking Fund]] - ----- --------------------- --------------------- and thereafter at a redemption price equal to __% of the principal amount thereof, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the date fixed for redemption, but interest installments maturing on or prior to such redemption date will be payable to the Holders of such Securities of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.] [If applicable, insert--The sinking fund for this series provides for --------------------- the redemption on ________ in each year beginning with the year ____ and ending with the year ____ of [[not less than]] $________ [[("mandatory sinking fund payments") and not more than $________]] aggregate principal amount of Securities of this series.] [If applicable, insert--Securities of this series --------------------- acquired or redeemed by the Issuer otherwise than through [[mandatory]] sinking fund payments [if applicable insert--and Securities of this series surrendered to the Issuer for conversion] may be credited against subsequent [[mandatory]] sinking fund payments otherwise required to be made.] -11- [If applicable, insert--Notwithstanding the foregoing, the Issuer may --------------------- not, prior to ________, redeem any Securities of this series as contemplated by [[Clause (2) of]] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of monies borrowed having an interest cost to the Issuer (calculated in accordance with generally accepted financial practice) of less than __% per annum.] [If applicable, insert--Partial redemptions must be in an amount not --------------------- less than $______________ principal amount of Securities.] [If applicable, insert--In the event of redemption of this Security in --------------------- part only, a new Security or Securities of this series for the unredeemed portion hereof having the same interest rate and maturity as this Security will be issued in the name of the Holder hereof upon the cancellation hereof.] [If the Security is convertible at the option of the Holder, insert-- -------------------------------------------------------------------- Subject to the provisions of the Indenture, the Holder hereof has the right at his option at any time until the close of business of the third Business Day preceding the maturity date hereof (except that, in case this Security shall be called for redemption before maturity, such right shall terminate in respect of this Security at the close of business on the third Business Day preceding the date fixed for redemption of this Security unless the Issuer shall default in payment due upon such redemption) to convert this Security (or any portion hereof which is [[insert minimum denomination]] or an integral multiple thereof) --------------------------- into fully paid and nonassessable shares of Common Stock, at the initial Conversion Price of [[U.S.$]]_________ per share of Common Stock, subject to such adjustment, if any, of the Conversion Price and the securities or other property issuable upon conversion as may be required by the provisions of the Indenture, but only upon surrender of this Security to the Trustee or to the conversion agent for surrender to the Issuer in accordance with the instructions on file with the conversion agent, accompanied by a written notice of election to convert, which shall be substantially in the Form of Election to Convert contained in the Indenture, and (if required by the Issuer) by an instrument or instruments of transfer, in form satisfactory to the Issuer, duly executed by the Holder or by his attorney duly authorized in writing. No payment or adjustment is to be made on conversion of this Security for interest accrued hereon or for dividends on Common Stock issued on conversion; provided, -------- however, that if this Security is surrendered for conversion after the Record - ------- Date for a payment of interest and on or before the Interest Payment Date, then, notwithstanding such conversion, the interest falling due on such Interest Payment Date will be paid to the person in whose name this Security is registered at the close of business on such Record Date and any Security surrendered for conversion during the period from the close of business on any Record Date to the opening of business on the corresponding Interest Payment Date must be accompanied by payment of an amount equal to the interest payable on such Interest Payment Date. No fractional Shares shall be issuable upon any conversion, but in lieu thereof the Issuer shall make an adjustment therefor in cash as provided in the Indenture.] [If the Security is not an Original Issue Discount Security, insert-- ------------------------------------------------------------------ If an Event of Default with respect to Securities of this series shall occur and be continuing, then the Trustee or the Holders of not less than 25% in aggregate principal amount (calculated as provided in the Indenture) of the Securities of this series then Outstanding may declare the principal of the -12- Securities of this series and accrued interest thereon, if any, to be due and payable in the manner and with the effect provided in the Indenture.] [If the ------ Security is an Original Issue Discount Security, insert--If an Event of Default - ------------------------------------------------------- with respect to Securities of this series shall occur and be continuing, then the Trustee or the Holders of not less than 25% in aggregate principal amount (calculated as provided in the Indenture) of the Securities of this series then Outstanding may declare an amount of principal of the Securities of this series due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to [[insert formula for determining the amount]].] ----------------------------------------- [If the Security is an extendible security, insert --The Securities of ------------------------------------------------- this series are subject to repayment in whole, or in part, on [insert month, day ----------------- and years], in increments of _______ or multiples of _______ in excess of - --------- ______, provided that the portion of the principal amount of any Security of this series not being repaid shall be at least _____, at the option of the Holder thereof at a repayment price equal to the principal amount thereof to be repaid, together with interest payable thereon to the repayment date. For this Security to be repaid at the option of the Holder, the Trustee must receive at the Corporate Trust Office or the New York Location, on or before the [insert ------ month and day] or, if such [insert month and day] is not a day other than a day - ------------- -------------------- on which banking institutions in the Borough of Manhattan, the City and State of New York are authorized or required by law or regulation to close (a "Business Day"), the next succeeding Business Day, but not earlier than the [insert month ------------ and day] prior to the [insert month and day] on which the repayment price will - ------- -------------------- be paid (i) this Security, with the form entitled "Option to Elect Repayment" below duly completed, or (ii) a facsimile transmission or letter from a member of a national securities exchange or the National Association of Securities Dealers, Inc. or a commercial bank or trust company in the United States of America setting forth the name of the Holder of this Security, the principal amount of the Security, the amount of such Security to be repaid, a statement that the option to elect repayment is being made thereby and a guarantee that the Security to be repaid with the form entitled "Option to Elect Repayment" on the reverse thereof duly completed will be received by the Issuer no later than five Business Days after the date of such facsimile transmission or letter, and such Security and form duly completed are received by the Issuer by such fifth Business Day. Either form of notice duly received on or before the [insert ------ month and day] preceding any such [insert month and day] shall be irrevocable. - ------------- -------------------- All questions as to the validity, eligibility (including time of receipt) and acceptance of any Securities of this series for repayment will be determined by the Issuer, whose determination shall be final and binding.] The Indenture permits, with certain exceptions as therein provided, the amendment or supplementing thereof and the modification of the rights and obligations of the Issuer, the Guarantor and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Issuer, the Guarantor and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount (calculated as provided in the Indenture) of the Securities at the time Outstanding of all series to be affected (all such series voting as a single class). The Indenture also contains provisions permitting the Holders of not less than a majority in aggregate principal amount (calculated as provided in the Indenture) of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive certain past defaults or Events of Default under the Indenture and the consequences of any such defaults or Events of Default. Any such consent or waiver by the -13- Holder of this Security (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security. No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest, if any, on this Security at the times, place and rate, if any, and in the coin or currency, herein prescribed. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security register, upon due presentment of this Security for registration of transfer at the office or agency of the Issuer in any place where the principal of and interest, if any, on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security registrar duly executed by the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series, having the same interest rate and maturity and bearing interest from the same date as this Security, of any authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. The Securities of this series are issuable only in registered form without coupons in denominations of ________ and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series of a different authorized denomination having the same interest rate and maturity and bearing interest from the same date as such Securities, as requested by the Holder surrendering the same. No service charge shall be made for any such registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment of this Security for registration of transfer, the Issuer, the Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue and notwithstanding any notation of ownership or other writing thereon, and none of the Issuer, the Guarantor, the Trustee or any such agent shall be affected by notice to the contrary. All payments made to or upon the order of such registered Holder, shall, to the extent of the sum or sums paid, effectually satisfy and discharge liability for monies payable on this Security. No recourse for the payment of the principal of or interest, if any, on this Security, or for payment pursuant to the Guaranty, or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Issuer or the Guarantor in the Indenture or any indenture supplemental thereto or in any Security, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, official or director, as such, past, present or future, of the Issuer or the Guarantor or -14- of any successor entity, either directly or through the Issuer or the Guarantor, as the case may be, or any successor entity, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released. All terms used in this Security and not otherwise defined herein which are defined in the Indenture shall have the meanings assigned to them in the Indenture. This Security shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of laws principles thereof. SECTION 2.4 Form of Notation on Security Relating to Guaranty. ------------------------------------------------- GUARANTY -------- Newmont Gold Company, a company organized under the laws of Delaware (the "Guarantor"), FOR VALUE RECEIVED, hereby irrevocably and unconditionally guarantees on an unsubordinated basis to the Holder of the Security upon which this Guaranty is endorsed, the due and punctual payment of the principal, premium, if any, and interest, if any, on the Security upon which this Guaranty is endorsed, when and as the same shall become due and payable, subject to any applicable grace period, whether on the date of maturity, by acceleration or upon redemption pursuant to Article Ten of the Indenture referred to in the Security on which this Guaranty is endorsed or otherwise. The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to this Guaranty and the Indenture, and the rights of the Guarantor with respect thereto, are expressly set forth in Article Thirteen of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guaranty, which are incorporated herein by reference and made a part thereof. No incorporator, shareholder, officer or director, as such, past, present or future of the Guarantor shall have any liability under this Guaranty by reason of his, her or its status as such incorporator, shareholder, officer or director. The Guarantor hereby agrees that its obligations hereunder and under Article Thirteen of the Indenture shall be as principal obligor and not merely as surety, and shall be unconditional, irrevocable and absolute, irrespective of the validity, regularity or enforceability of the Security on which this Guaranty is endorsed or the Indenture, the absence of any action to enforce the same, any waiver or consent by the Holder of such Security with respect to any provisions thereof, the recovery of any judgment against the Issuer, any action to enforce the same, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a 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 Issuer, any right to require a proceeding first against the Issuer, protest or notice with respect to such Security or indebtedness evidenced thereby, and all demands whatsoever and covenants that this -15- Guaranty will not be discharged except by complete performance of the obligations of the Guarantor contained in the Indenture and in this Guaranty. The Guarantor shall be subrogated to all rights of the Holder of the Security on which this Guaranty is endorsed against the Issuer in respect to any amounts paid by the Guarantor pursuant to the provisions of this Guaranty as and to the extent provided in Article Thirteen of the Indenture. This Guaranty shall not be valid or obligatory for any purpose until the certificate of authentication on the Security upon which this Guaranty is endorsed shall have been executed by the Trustee under the Indenture by the manual signature of one of its authorized signatories. This Guaranty shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflicts of laws principles thereof. Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Indenture. IN WITNESS WHEREOF this instrument has been duly executed in the name of the Guarantor. NEWMONT GOLD COMPANY By:____________________________ Name: Title: SECTION 2.5 Form of Trustee's Certificate of Authentication. The ----------------------------------------------- Trustee's certificate of authentication on all Securities shall be in substantially the following form: This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture. Dated: CITIBANK, N.A., as Trustee By__________________________________ Authorized Signatory SECTION 2.6 Amount Unlimited; Issuable in Series. The aggregate ------------------------------------ principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. -16- The Securities may be issued in one or more series, each of which may consist of one or more Tranches. There shall be established in or pursuant to a Resolution, a copy of which, certified by the secretary or an assistant secretary of the Issuer, shall be delivered to the Trustee, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of a particular series, (1) the title of the Securities of the series (which shall distinguish the Securities of the series from all other 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 2.12, 2.13, 2.15 or 10.3); (3) the date or dates 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 (including the Overdue Rate) shall be determined, the date or dates from which such interest shall accrue or the method by which such date or dates may be determined, the interest payment dates on which such interest shall be payable and the record dates for the determination of Holders to whom interest is payable; (5) the place or places where the principal and any interest on Securities of the series shall be payable; (6) the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Issuer, pursuant to any sinking fund or otherwise; (7) the obligation, if any, of the Issuer to redeem, purchase or repay Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation; (8) the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the series may be repaid, in whole or in part, at the option of the Holder thereof; (9) if other than Dollars, the coin or currency (including composite currencies or currency units) in which the Securities of the series shall be denominated and, if different, the coin or currency (including composite currencies or currency units) in which payment of the principal of and/or interest on the Securities of the series shall be payable, and if such coin or currency (including composite currencies or currency units) is replaced by the euro, the provisions to effect such replacement; -17- (10) if the principal of and/or interest on the Securities of the series are to be payable, at the election of the Issuer or a Holder thereof, in a coin or currency (including composite currencies or currency units) other than that in which the Securities are stated to be payable, the period or periods within which, and the terms and conditions upon which, such election may be made; (11) if the amount of payments of principal of and/or interest on the Securities of the series may be determined with reference to an index based on a coin or currency (including composite currencies or currency units) other than that in which the Securities are stated to be payable or with reference to any other index, the manner in which such amounts shall be determined; (12) if other than denominations of U.S. $1,000 (or if the Securities are denominated in a currency other than Dollars or in a composite currency, 1,000 units of such other currency or composite currency or other currency units) and any multiple thereof, the denominations in which Securities of the series shall be issuable; (13) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 4.1 or provable in bankruptcy pursuant to Section 4.2; (14) if the Securities of the series are Original Issue Discount Securities, the price at which and the date on which Securities of the series are to be issued and the Yield to Maturity at the time of issuance of such series; (15) if the Securities of the series are convertible into Common Stock, the Conversion Price therefor, the period during which such Securities are convertible and any terms and conditions for the conversion of such Securities which differ from Article Eleven; and (16) any other terms of the series which are not inconsistent with this Indenture. In the case of Securities of a series issued in Tranches, all Securities of any one Tranche shall be substantially identical, except as to denomination. Except as provided in the preceding sentence, all Securities of any one series shall be substantially identical except as to denomination, interest rate and maturity and except as may otherwise be provided in or pursuant to such Resolution or in any such indenture supplemental hereto. The applicable Resolution or the applicable supplemental indenture may provide that Securities of any particular series may be issued at various times, with different maturities and redemption and repayment provisions (if any) and bearing interest at different rates, but shall for all purposes under this Indenture, including, but not limited to, voting and Events of Default, be treated as Securities of a single series. Except as otherwise specified pursuant to this Section 2.6 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months. -18- SECTION 2.7 Authentication and Delivery of Securities. At any time ----------------------------------------- and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication, with, in each case, the Guaranty endorsed thereon executed by the Guarantor, and the Trustee shall thereupon authenticate and make available for delivery such Securities to or upon the written order of the Issuer, signed by both (a) its chairman, its president, its executive vice president or any senior vice president and (b) its treasurer, its controller, its secretary, without any further action by the Issuer. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities the Trustee shall be entitled to receive, and (subject to the requirements of the Trust Indenture Act of 1939) shall be fully protected in relying upon: (1) a copy of any Resolution or Resolutions relating to such series, certified by the secretary or an assistant secretary of each of the Issuer and the Guarantor; (2) an executed supplemental indenture, if any, relating thereto; (3) an Officers' Certificate of the Issuer setting forth the form and terms of the Securities as required pursuant to Sections 2.1 and 2.6, respectively, and prepared in accordance with the requirements of the Trust Indenture Act of 1939 and Section 13.5; (4) an Opinion of Counsel, prepared in accordance with the requirements of the Trust Indenture Act of 1939 and Section 13.5, which shall state that (i) if the form of such Securities has been established by or pursuant to a Resolution of the Issuer as permitted by Section 2.1, that such form or forms, as the case may be, have been established in conformity with the provisions of this Indenture, and that the terms of such Securities have been established by or pursuant to a Resolution of the Issuer as permitted by Section 2.6 in conformity with the provisions of this Indenture and that the authentication and delivery of such Securities by the Trustee is authorized under the provisions of this Indenture and (ii) that such Securities, when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel will constitute valid and legally binding obligations of the Issuer, enforceable in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and to general principles of equity regardless of whether the issue of enforceability is considered in a proceeding in equity or at law; and (5) an Opinion of Counsel, prepared in accordance with the requirements of the Trust Indenture Act of 1939 and Section 13.5, which shall state that the Guaranty endorsed upon such Securities, when such Securities are authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute the valid and legally binding obligation of the Guarantor, enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and to general principles of equity, regardless of whether the issue of enforceability is considered in a proceeding in equity or at law. -19- The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees and/or Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would adversely affect the Trustee's own rights, duties or immunities under this Indenture or otherwise. The Trustee shall not be required to authenticate Securities denominated in a coin or currency other than that of the United States of America if the Trustee reasonably determines that such Securities impose duties or obligations on the Trustee which the Trustee is not able or reasonably willing to accept; provided that the Trustee, upon the request of the Issuer, will resign as Trustee with respect to Securities of any series as to which such a determination is made, prior to the issuance of such Securities, and will comply with the request of the Issuer to execute and deliver a supplemental indenture appointing a successor Trustee pursuant to Section 7.1. If the Issuer shall establish pursuant to Section 2.6 that the Securities of a series or a Tranche are to be issued in the form of one or more Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the order of the Issuer with respect to such series, authenticate and deliver one or more Global Securities, in each case with the Guaranty endorsed thereon executed by the Guarantor, that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series or such Tranche, as the case may be, issued and not yet cancelled, (ii) shall be registered in the name of the Depositary for such Global Security or Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary's instructions and (iv) shall bear such legend, if any, as shall be required by the Depositary. Each Depositary of a Global Security designated pursuant to Section 2.6 must, at the time of its designation and at all times while it serves as Depositary hereunder, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation. SECTION 2.8 Execution of Securities. The Securities shall be signed ----------------------- on behalf of the Issuer by the chairman of its Board of Directors, its president, the executive vice president, any senior vice president or its treasurer, under its corporate seal which shall be attested by the secretary or any assistant secretary of the Issuer. Such signatures may be the manual or facsimile signatures of the present or any future such officers. The seal of the Issuer may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Securities. Typographical and other minor errors or defects in any such reproduction of the seal or any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee. In case any officer of the Issuer who shall have signed any of the Securities shall cease to be such officer before the Security so signed shall be authenticated and delivered by the Trustee or disposed of by the Issuer, such Security nevertheless may be authenticated and deliv- -20- ered or disposed of as though the person who signed such Security had not ceased to be such officer of the Issuer; and any Security may be signed on behalf of the Issuer by such persons as, at the actual date of the execution of such Security, shall be the proper officers of the Issuer, although at the date of the execution and delivery of this Indenture any such person was not such an officer. SECTION 2.9 Certificate of Authentication. Unless a certificate of ----------------------------- authentication, substantially in the form hereinbefore recited, set forth on a Security has been executed by the Trustee by the manual signature of one of its authorized signatories, such Securities shall not be entitled to the benefits of this Indenture and neither such Security nor the Guaranty endorsed thereon shall be valid or obligatory for any purpose. Such certificate by the Trustee upon any Security executed by the Issuer shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture. SECTION 2.10 Execution and Delivery of Guaranty. To evidence the ---------------------------------- Guaranty to the Securityholders hereunder, the Guaranty, substantially in the form provided in Section 2.4, shall be endorsed on each Security authenticated and delivered hereunder. The Guaranty endorsed upon each such Security shall be signed in the name of the Guarantor by the president, the executive vice president, any senior vice president or treasurer of the Guarantor. Such signature may be the manual or facsimile signature of the present or any future such officers. Typographical and other minor errors or defects in any such reproduction of any such signature shall not affect the validity or enforceability of the Guaranty endorsed upon any Security that has been duly authenticated and delivered by the Trustee. In case any officer of the Guarantor who shall have signed any Guaranty shall cease to hold such office before the Security on which such Guaranty is endorsed shall be authenticated and delivered by the Trustee or disposed of by the Issuer, such Security nevertheless may be authenticated and delivered or disposed of as though the Person who signed such Guaranty had not ceased to hold such office; and the Guaranty on any Security may be signed in the name of the Guarantor by such Persons as, at the actual date of the execution of such Guaranty, shall be the proper officers of the Guarantor, although at the date of the execution and delivery of this Indenture any such person was not such an officer. SECTION 2.11 Denomination and Date of Securities; Payments of ------------------------------------------------ Interest. The Securities of each series shall be issuable as registered - -------- securities without coupons and in denominations as shall be specified as contemplated by Section 2.6. In the absence of any such specification with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of U.S.$1,000 (or, if such Securities are denominated in a currency other than U.S. dollars or in a composite currency, 1,000 units of such other currency or composite currency) and any multiple thereof. The Securities of each series shall be numbered, lettered or otherwise distinguished in such manner or in accordance with such plan as the officers of the Issuer executing the same may determine with the approval of the Trustee as evidenced by the execution and authentication thereof. -21- Each Security shall be dated the date of its authentication, shall bear interest, if any, from the date, and shall be payable on the dates, in each case, which shall be specified as contemplated by Section 2.6. Except as otherwise specified for a particular series pursuant to Section 2.6, the Person in whose name any Security of any series is registered at the close of business on any record date (as hereinafter defined) applicable to a particular series with respect to any interest payment date for such series shall be entitled to receive the interest, if any, payable on such interest payment date notwithstanding the cancellation of such Security upon any registration of any transfer or exchange of such Security subsequent to the record date and prior to such interest payment date, except if and to the extent the Issuer shall default in the payment of the interest due on such interest payment date for such series, in which case such defaulted interest shall be paid to the Persons in whose names Outstanding Securities of such series are registered at the close of business on a subsequent record date (which shall be not less than five days prior to the date of payment of such defaulted interest) established by notice given by mail by or on behalf of the Issuer to the Holders of Securities not less than 15 days preceding such subsequent record date. The term "record date" as used with respect to any interest payment date (except a date for payment of defaulted interest) shall mean the date specified as such in the terms of the Securities of any particular series, or, if no such date is so specified, if such interest payment date is the first day of a calendar month, the fifteenth day of the next preceding calendar month or, if such interest payment date is the fifteenth day of a calendar month, the first day of such calendar month, whether or not such record date is a Business Day. SECTION 2.12 Registration, Transfer and Exchange. The Issuer will ----------------------------------- keep, either at the office or agency designated and maintained by the Issuer for such purpose in the Borough of Manhattan, The City of New York, in accordance with the provisions of Section 3.2, or at any of such other offices or agencies as may be designated and maintained in accordance with the provisions of Section 3.2, a register or registers in which, subject to such reasonable regulations as it may prescribe, it will register, and will register the transfer of, Securities of a series as in this Article provided. Such register shall be in written form in the English language or in any other form capable of being converted into such form within a reasonable time. At all reasonable times such register or registers shall be open for inspection by the Trustee and any Security registrar (as defined below) other than the Trustee. Upon due presentation for registration of transfer of any Security of any series at any such office or agency to be maintained for the purpose as provided in Section 3.2, the Issuer shall execute (in each case with the Guaranty endorsed thereon executed by the Guarantor) and the Trustee shall authenticate and make available for delivery in the name of the transferee or transferees a new Security or Securities of the same series in authorized denominations for a like aggregate principal amount and having the same interest rate, maturity and repayment and redemption provisions. Any Security or Securities of any series (other than a Global Security, except as set forth below) may be exchanged for a Security or Securities of the same series in other authorized denominations, in an equal aggregate principal amount and having the same interest rate, maturity, redemption and repayment provisions. Securities of any series to be exchanged shall be surren- -22- dered at any office or agency to be maintained by the Issuer for the purpose as provided in Section 3.2, and the Issuer shall execute (in each case with the Guaranty endorsed thereon executed by the Guarantor) and the Trustee shall authenticate and make available for delivery in exchange therefor the Security or Securities of the same series and having the same interest rate, maturity and repayment and redemption provisions which the Securityholder making the exchange shall be entitled to receive, bearing numbers or other distinguishing symbols not contemporaneously outstanding. Each Person designated by the Issuer pursuant to the provisions of Section 3.2 as a Person authorized to register and register transfer of the Security is sometimes herein referred to as a "Security registrar". The Issuer will at all times designate one Person (who may be the Issuer and who need not be a Security registrar) to act as repository of a master list of names and addresses of the Holders of the Securities (the "Register"). The Trustee shall act as such repository unless and until some other Person is, by written notice from the Issuer to the Trustee and each Security registrar, designated by the Issuer to act as such. The Issuer shall cause each Security registrar to furnish to such repository, on a current basis, such information as to all registrations of transfer and exchanges effected by such registrar, as may be necessary to enable such repository to maintain the Register on as current a basis as is practicable. No Person shall at any time be designated as or act as a Security registrar unless such Person is at such time empowered under applicable law to act as such and duly registered to act as such under and to the extent required by applicable law and regulations. All Securities presented for registration of transfer, exchange, redemption or payment shall (if so required by the Issuer or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer or exchange in form satisfactory to the Issuer and the Trustee duly executed by, the Securityholder or his attorney duly authorized in writing. The Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any exchange or registration of transfer of Securities, other than exchanges pursuant to Section 2.15, 7.5 or 10.3 not involving any registration of transfer. No service charge shall be made for any such transaction. The Issuer shall not be required to exchange or register a transfer of (a) any Securities of any series for a period of 15 days next preceding the selection of Securities of that series to be redeemed, or (b) any Securities selected, called or being called for redemption or surrendered for repayment in whole or in part except, in the case of any Security to be redeemed or repaid in part, the portion thereof not so to be redeemed or repaid. Notwithstanding any other provision of this Section 2.12, unless and until it is exchanged in whole or in part for Securities in definitive registered form, a Global Security representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depository to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary. -23- If at any time the Depositary for any Securities of a series represented by one or more Global Securities notifies the Issuer that it is unwilling or unable to continue as Depositary for such Securities or if at any time the Depositary for such Securities shall no longer be eligible under Section 2.7, the Issuer shall appoint a successor Depositary with respect to such Securities. If a successor Depositary for such Securities is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such ineligibility, the Issuer's election pursuant to Section 2.6 that such Securities be represented by one or more Global Securities shall no longer be effective and the Issuer will execute, and the Trustee, upon receipt of an Officers' Certificate for the authentication and delivery of definitive Securities of such series, will authenticate and make available for delivery definitive Securities of the same series, in any authorized denominations, in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such Securities, in exchange for such Global Security or Securities. The Issuer may at any time, and in its sole discretion, determine that Securities issued in the form of one or more Global Securities shall no longer be represented by a Global Security or Securities. In such event the Issuer will execute, and the Trustee, upon receipt of an Officers' Certificate for the authentication and delivery of definitive Securities, will authenticate and make available for delivery definitive Securities of the same series, in any authorized denominations, in an aggregate principal amount equal to the principal amount of the Registered Global Security or Securities, in exchange for such Global Security or Securities. If specified by the Issuer pursuant to Section 2.6 with respect to Securities represented by a Global Security, the Depositary for such Global Security may surrender such Global Security in exchange in whole or in part for definitive Securities of the same series on such terms as are acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall execute, with the Guaranty thereon executed by the Guarantor, and the Trustee shall authenticate and make available for delivery, without service charge: (i) to the Person specified by such Depositary, a new Security or Securities of the same series, of any authorized denominations as requested by such person, in an aggregate principal amount equal to and in exchange for such person's beneficial interest in the Global Security; and (ii) to such Depositary a new Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Securities authenticated and delivered pursuant to clause (i) above. Upon the exchange of a Global Security for definitive Securities, in authorized denominations, such Global Security shall be cancelled by the Trustee or an agent of the Issuer or the Trustee. Definitive Securities issued in exchange for a Global Security pursuant to this Section 2.12 shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee or an agent of the Issuer or the Trustee. The Trustee or such -24- agent shall make such Securities available for delivery to or as directed by the Persons in whose names such Securities are so registered. SECTION 2.13 Mutilated, Defaced, Destroyed, Lost and Stolen ---------------------------------------------- Securities. In case any temporary or definitive Security shall become - ---------- mutilated, defaced or be destroyed, lost or stolen and, in the absence of notice to the Issuer or the Trustee that any destroyed, lost or stolen Security has been acquired by a bona fide purchaser, the Issuer may in its discretion execute (with the Guaranty endorsed thereon executed by the Guarantor) and the Trustee shall authenticate and make available for delivery, a new Security of the same series and of like tenor, bearing a number or other distinguishing symbol not contemporaneously Outstanding, in exchange and substitution for the mutilated or defaced Security, or in lieu of and substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substitute Security shall furnish to the Issuer, the Guarantor and the Trustee (and any agent of the Issuer, the Guarantor or the Trustee, if requested by the Issuer or the Guarantor) such security or indemnity as may be required by them to indemnify and defend and to save each of them harmless and, in every case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof. Upon the issuance of any substitute Security, the Issuer 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. In case any Security that has matured or is about to mature or has been called for redemption in full shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer in its discretion may instead of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated or defaced Security), if the applicant for such payment shall furnish to the Issuer, the Guarantor and the Trustee (and any agent of the Issuer, the Guarantor or the Trustee, if requested by the Issuer or the Guarantor) such security or indemnity as any of them may require to indemnify and defend and to save each of them harmless, and, in every case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof. Every substituted Security of any series and the Guaranty endorsed thereon issued pursuant to the provisions of this Section by virtue of the fact that any such Security is destroyed, lost or stolen shall constitute an additional contractual obligation of the Issuer and the Guarantor, respectively, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone and shall be entitled to all the benefits of (but shall be subject to all the limitations of rights set forth in) this Indenture equally and proportionately with any and all other Securities of such series duly authenticated and delivered hereunder. All Securities shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or stolen Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender. -25- SECTION 2.14 Cancellation of Securities Paid, etc. All Securities ------------------------------------- surrendered for the purpose of payment, redemption, registration of transfer, conversion or exchange, or for credit against any payment in respect of a sinking or analogous fund, if surrendered to the Issuer, any Security registrar, any paying agent, any conversion agent, or any other agent of the Issuer or any agent of the Trustee, shall be delivered to the Trustee and promptly canceled by it or, if surrendered to the Trustee, shall be promptly canceled by it; and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee shall destroy such canceled Securities and deliver a certificate with respect to such destruction to the Issuer. If the Issuer shall acquire any of the Securities, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation. SECTION 2.15 Temporary Securities. Pending the preparation of -------------------- definitive Securities for any series, the Issuer may execute and the Trustee shall authenticate and make available for delivery temporary Securities for such series (printed, lithographed, typewritten or otherwise reproduced) (with the Guaranty endorsed thereon executed by the Guarantor). Temporary Securities of any series shall be issuable as registered Securities without coupons, in any authorized denomination, and substantially in the form of the definitive Securities of such series in lieu of which they are issued but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Issuer. Temporary Securities may contain such reference to any provisions of this Indenture as may be appropriate. Every temporary Security shall be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities in lieu of which they are issued. Without unreasonable delay the Issuer shall execute definitive Securities of such series and the Issuer shall furnish (with, in each case, the Guaranty endorsed thereon executed by the Guarantor) such definitive securities and thereupon temporary Securities of such series may be surrendered in exchange therefor without charge at each office or agency to be maintained by the Issuer for that purpose pursuant to Section 3.2, and the Trustee shall authenticate and make available for delivery in exchange for such temporary Securities of such series a like aggregate principal amount of definitive Securities of the same series of authorized denominations having the same interest rate, maturity and redemption and repayment provisions, and bearing interest from the same date as such temporary Securities. Until so exchanged, the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of the same series authenticated and delivered hereunder. SECTION 2.16 CUSIP Numbers. The Issuer in issuing the Securities may ------------- use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to Securityholders; provided that any such notice may state that no representation -------- is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Trustee of any change in the "CUSIP" numbers. SECTION 2.17 Form of Election to Convert. The notice of conversion --------------------------- to be delivered by a Holder to the conversion agent in connection with the conversion of Securities of -26- any series that are convertible into shares of Common Stock shall be in substantially the following form, with such appropriate insertions, omissions, substitutions and other variations as are deemed necessary or appropriate by the Issuer or the Trustee: Notice of Conversion The undersigned Holder of the Securities specified below hereby irrevocably exercises the option to convert such Securities, or the aggregate principal amount thereof specified below, into shares of Common Stock of the Issuer, in accordance with the terms of the Securities and the Indenture dated as of _________________, (the "Indenture") between Newmont Mining Corporation and Citibank, N.A. as Trustee, and directs that if such Holder is electing to receive Common Stock, the Common Stock issuable and deliverable upon conversion be delivered to such Holder unless otherwise indicated below and any check in payment for fractional shares be issued in the name of and delivered to the undersigned unless a different name has been indicated below. All capitalized terms used herein and not defined herein shall have the meanings specified in the Indenture. Dated: ___________________________________ Signature (for Conversion only) Title of Securities: Certificate Number(s) (if applicable): Aggregate Principal Amount Represented:/1/ Principal Amount to be Converted:/2/ If checked for fractional Shares to be issued otherwise than to Holder: _______________________________ Print name and address _______________________________ /1/ Unless otherwise specified, a Holder will be deemed to be converting the entire principal amount of the Securities delivered. /2/ Certificate registered in the name of the Holder will be issued in the principal amount of the Securities not converted, unless otherwise provided. -27- Please print name and address of Holder __________________________ __________________________ Signature Guarantee: __________________________ __________________________ ARTICLE THREE COVENANTS OF THE ISSUER ----------------------- SECTION 3.1 Payment of Principal and Interest. The Issuer covenants --------------------------------- and agrees for the benefit of each series of Securities that it will duly and punctually pay or cause to be paid the principal of and interest, if any, on each of the Securities of such series at the place or places, at the respective times and in the manner provided in such Securities and in a manner consistent with the applicable requirements of The Depository Trust Company. Except as otherwise provided pursuant to Section 2.6 for Securities of any series, each installment of interest on the Securities of any series may be paid by mailing checks for such interest payable to the Person entitled thereto as such addresses shall appear in the Register. SECTION 3.2 Offices for Payments, etc. So long as any of the -------------------------- Securities remain outstanding, the Issuer will designate and maintain in the Borough of Manhattan, The City of New York, for each series: (a) an office or agency where the Securities may be presented for payment or conversion, (b) an office or agency where the Securities may be presented for registration of transfer and for exchange as in this Indenture provided and (c) an office or agency where notices and demands to or upon the Issuer in respect of the Securities or of this Indenture may be served. In addition to such office or offices or agency or agencies, the Issuer may from time to time designate and maintain one or more additional offices or agencies within or outside the Borough of Manhattan, The City of New York, where the Securities of that series may be presented for payment or for registration of transfer or for exchange, and the Issuer may from time to time rescind such designation, as it may deem desirable or expedient. The Issuer will give to the Trustee written notice of the location of any such office or agency and of any change of location thereof. The Issuer hereby designates the New York Location and the Corporate Trust Office as the initial offices to be maintained by it for such purposes. In case the Issuer shall fail to maintain any such office or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made and notices may be served at the Corporate Trust Office and the Issuer appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands. SECTION 3.3 Paying Agents. Whenever the Issuer shall appoint a ------------- paying agent or agents other than the Trustee with respect to the Securities of any series, it will cause each -28- such paying agent to execute and deliver to the Trustee an instrument in which each such paying agent shall agree with the Trustee, subject to the provisions of this Section, (a) that it will hold all sums received by it as such agent for the payment of the principal of or interest, if any, on the Securities of such series (whether such sums have been paid to it by the Issuer or by any other obligor on the Securities of such series) in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided, (b) that it will give the Trustee notice of any default by the Issuer (or by any other obligor on the Securities of such series) to make any payment of the principal of or interest, if any, on the Securities of such series when the same shall be due and payable, and (c) that, at any time during the continuance of any such default referred to in clause (b) above, upon the written request of the Trustee, it will forthwith pay to the Trustee all sums so held in trust by such paying agent. Whenever the Issuer shall have one or more paying agents with respect to Securities of any series, it will, prior to each due date of the principal of or interest, if any, on the Securities of such series, deposit with a designated paying agent a sum sufficient to pay such principal or interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal or interest, if any, and (unless such paying agent is the Trustee) the Issuer will promptly notify the Trustee of any failure to take such action. If the Issuer shall act as its own paying agent with respect to the Securities of any series, it will, on or before each due date of the principal of or interest, if any, on the Securities of such series, set aside, segregate and hold in trust for the benefit of the Persons entitled to such principal and interest, if any, a sum sufficient to pay such principal or interest, if any, so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided. The Issuer will promptly notify the Trustee of any failure to take such action. Anything in this Section to the contrary notwithstanding, the Issuer may at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust for any such series by the Issuer or any paying agent hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein contained. Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to the provisions of Sections 9.3 and 9.4. SECTION 3.4 Limitation on Liens. The Issuer will not itself, and ------------------- will not permit any Restricted Subsidiary to, incur, issue, assume or guarantee any indebtedness for money borrowed or any other indebtedness evidenced by notes, bonds, debentures or other similar evidences of indebtedness for money borrowed (hereinafter in this Section and in Section 3.5 called "Debt") secured by pledge of, or mortgage, deed of trust or other lien on, any Principal Property owned -29- by the Issuer or any Restricted Subsidiary, or any shares of stock or other ownership interests or Debt of any Restricted Subsidiary held by the Company or any Restricted Subsidiary (such pledges, mortgages, deeds of trust and other liens being hereinafter in this Section and in Section 3.5 called "Mortgage" or "Mortgages"), without effectively providing that the Securities of all series (together with, if the Issuer shall so determine, any other Debt of the Issuer or such Restricted Subsidiary then existing or thereafter created which is not subordinate to the Securities) shall be secured equally and ratably with (or prior to) such secured Debt, so long as such secured Debt shall be so secured, unless, after giving effect thereto, the aggregate principal amount of all such secured Debt which would otherwise be prohibited, plus all Attributable Debt of the Issuer and its Restricted Subsidiaries in respect of sale and leaseback transactions (as defined in Section 3.5) which would otherwise be prohibited by Section 3.5 would not exceed the sum of 10% of Consolidated Net Tangible Assets; provided, that this Section shall not apply to, and there shall be excluded from - -------- secured Debt in any computation under this Section, Debt secured by: (a) Mortgages on property of, or on any shares of stock or other ownership interests or Debt of, any corporation or any other entity existing at the time such corporation or entity becomes a Restricted Subsidiary; (b) Mortgages to secure indebtedness of any Restricted Subsidiary to the Issuer or to another Restricted Subsidiary; (c) Mortgages for taxes, assessments or governmental charges or levies in each case (i) not then due and delinquent or (ii) the validity of which is being contested in good faith by appropriate proceedings, and materialmen's, mechanics', carriers', workmen's, repairmen's, landlords' or other like Mortgages, or deposits to obtain the release of such Mortgages; (d) Mortgages arising under an order of attachment or distraint or similar legal process so long as the execution or enforcement thereof is effectively stayed and the claims secured thereby are being contested in good faith; (e) Mortgages to secure public or statutory obligations or to secure payment of workmen's compensation or to secure performance in connection with tenders, leases of real property, bids or contracts or to secure (or in lieu of) surety or appeal bonds and Mortgages made in the ordinary course of business for similar purposes; (f) Mortgages in favor of the United States of America or any State thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, or in favor of any other country, or any political subdivision thereof, to secure partial, progress, advance or other payments pursuant to any contract or statute (including Debt of the Pollution Control or Industrial Revenue Bond type) or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the property subject to such Mortgages; -30- (g) Mortgages on property (including any lease which should be capitalized on the lessee's balance sheet in accordance with generally accepted accounting principles), shares of stock or other ownership interests or Debt existing at the time of acquisition thereof (including acquisition through merger or consolidation or through purchase or transfer of the properties of a corporation or any other entity as an entirety or substantially as an entirety) or to secure the payment of all or any part of the purchase price or construction cost or improvement cost thereof or to secure any Debt incurred prior to, at the time of, or within one year after, the acquisition of such property or shares or other ownership interests or Debt or the completion of any such construction (including any improvements on an existing property) or the commencement of commercial operation of such property, whichever is later, for the purpose of financing all or any part of the purchase price or construction cost thereof; (h) Mortgages existing at the date of this Indenture; and (i) Any extension, renewal or replacement (or successive extensions, renewals or replacements), as a whole or in part, of any Mortgage referred to in the foregoing clauses (a) to (h), inclusive; provided, that (i) such -------- extension, renewal or replacement Mortgage shall be limited to all or a part of the same property, shares of stock or Debt that secured the Mortgage extended, renewed or replaced (plus improvements on such property) and (ii) the Debt secured by such Mortgage at such time is not increased; provided further, that these restrictions shall not apply to (i) any gold-based - ---------------- loan or forward sale arrangement, and (ii) Mortgage upon property owned or leased by the Issuer or any Restricted Subsidiary or in which the Issuer or any Restricted Subsidiary owns an interest to secure the Issuer's or a Restricted Subsidiary's proportionate share of any payments required to be made to any Person incurring the expense of developing, exploring, or conducting operations for the recovery, processing or sale of the mineral resources of such owned or leased property and any such loan, arrangement or payment referred to in clauses (i) and (ii) of this proviso shall not be deemed to constitute secured Debt and, shall not be included in any computation under these restrictions. SECTION 3.5 Limitation on Sales and Leasebacks. The Issuer will not ---------------------------------- itself, and it will not permit any Restricted Subsidiary to, enter into any arrangement with any bank, insurance company or other lender or investor (not including the Issuer or any Restricted Subsidiary) or to which any such lender or investor is a party, providing for the leasing by the Issuer or any such Restricted Subsidiary for a period, including renewals, in excess of three years, of any Principal Property owned by the Issuer or such Restricted Subsidiary which has been or is to be sold or transferred more than 270 days after the acquisition thereof or after the completion of construction and commencement of full operation thereof, by the Issuer or any such Restricted Subsidiary to such lender or investor or to any person to whom funds have been or are to be advanced by such lender or investor on the security of such Principal Property (herein referred to as a "sale and leaseback transaction") unless either: (a) the Issuer or such Restricted Subsidiary could create Debt secured by a Mortgage on the Principal Property to be leased back in an amount equal to the -31- Attributable Debt with respect to such sale and leaseback transaction without equally and ratably securing the Securities of all series pursuant to Section 3.4, or (b) the Issuer within 180 days after the sale or transfer shall have been made by the Issuer or by any such Restricted Subsidiary, applies an amount equal to the greater of (i) the net proceeds of the sale of the Principal Property sold and leased back pursuant to such arrangement or (ii) the fair market value of the Principal Property so sold and leased back at the time of entering into such arrangement (as determined by any two of the following: the chairman, the president, the executive vice president, any senior vice president, the treasurer, the controller or the secretary of the Issuer) to (x) the purchase of property, facilities or equipment (other than the property, facilities or equipment involved in such sale) having a value at least equal to the net proceeds of such sale or (y) the retirement of Funded Debt of the Issuer or any Restricted Subsidiary; provided, that the amount required to be applied to the -------- retirement of Funded Debt of the Issuer shall be reduced by (i) the principal amount of any Securities of any series (or, if the Securities of any series are Original Issue Discount Securities, such portion of the principal amount as may be due and payable with respect to such series pursuant to a declaration in accordance with Section 4.l or if the Securities of any series provide that an amount other than the face thereof will or may be payable upon the maturity thereof or a declaration of acceleration of the maturity thereof, such amount as may be due and payable with respect to such securities pursuant to a declaration in accordance with Section 4.1.) delivered within 180 days after such sale or transfer to the Trustee for retirement and cancellation, and (ii) the principal amount of Funded Debt, other than the Securities of any series, voluntarily retired by the Issuer within 180 days after such sale or transfer. Notwithstanding the foregoing, no retirement referred to in this clause (b) may be effected by payment at maturity or pursuant to any mandatory sinking fund payment or any mandatory prepayment provision. SECTION 3.6 Notice of Default. The Issuer shall file with the ----------------- Trustee written notice of the occurrence of any default or Event of Default within five Business Days of the chairman of the Board of Directors, the president, the executive vice president, any senior vice president, the general counsel, the treasurer or the secretary becoming aware of any such default or Event of Default. SECTION 3.7 Calculation of Original Issue Discount. The Issuer shall -------------------------------------- file with the Trustee promptly at the end of each calendar year a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on Outstanding Securities as of the end of such year. SECTION 3.8 Reports. Each of the Issuer and the Guarantor shall ------- comply with the provisions of (S) 314(a) of the Trust Indenture Act of 1939 and shall file with the Trustee within 45 days after it files them with the Commission and in any event no later than 60 days after the end of the respective fiscal quarter, copies of its annual report and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may by rules and regulations prescribe) which the Issuer is required to file with the -32- Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended. 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 Issuer's or the Guarantor's compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers' Certificates). SECTION 3.9 Compliance Certificates. (a) On or before April 15 in ----------------------- each year (commencing with the first April 15 which is not less than 60 days following the first date of issuance of Securities of any series under this Indenture), each of the Issuer and the Guarantor will file with the Trustee a brief certificate, signed by its principal executive officer, principal financial officer, or principal accounting officer, stating whether or not the signer has knowledge of any default by the Issuer or the Guarantor, respectively, in the performance or fulfillment of any covenant, agreement, or condition contained in this Indenture, and, if so, specifying each such default of which the signer has knowledge, the nature thereof, and what action, if any, has been taken and is proposed to be taken to cure such default. For purposes of this paragraph, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture. (b) The Issuer and the Guarantor also shall comply with the other provisions of (S) 314(a) of the Trust Indenture Act of 1939. ARTICLE FOUR REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT ----------------------------------- SECTION 4.1 Events of Default. "Event of Default" with respect to ----------------- Securities of a particular series wherever used herein, means any one of the following events and such other events as may be established with respect to the Securities of such series as contemplated by Section 2.6, continued for the period of time, if any, and after the giving of notice, if any, designated in this Indenture or as may be established with respect to such Securities as contemplated by Section 2.6, as the case may be, unless such event is either inapplicable or is specifically deleted or modified in, or pursuant to, the applicable Resolution or in the supplemental indenture under which such series of Securities is issued, as the case may be, as contemplated by Section 2.6: (a) default in the payment of any installment of interest, if any, upon any of the Securities of such series as and when the same shall become due and payable, and continuance of such default for a period of 30 days; or (b) default in the payment of the principal of any of the Securities of such series as and when the same shall become due and payable either at maturity, upon redemption, by declaration or otherwise; or -33- (c) default in the payment of any sinking fund installment as and when the same shall become due and payable by the terms of the Securities of such series; or (d) failure on the part of the Issuer duly to observe or perform any other of the covenants or agreements on the part of the Issuer in respect of the Securities of such series contained in this Indenture (other than a covenant or agreement in respect of the Securities of such series a default in the performance of which or a breach of which is elsewhere in this Section specifically addressed), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Issuer and the Guarantor by the Trustee or to the Issuer, the Guarantor and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of such 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 (e) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Issuer or the Guarantor in an involuntary case under any applicable Federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Issuer or the Guarantor or for all or substantially all of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 90 consecutive days; or (f) the Issuer or the Guarantor shall commence a voluntary case under any applicable Federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Issuer or the Guarantor, respectively, or for all or substantially all of its property, or make any general assignment for the benefit of creditors. (g) the Guaranty ceases to be in full force and effect (except as contemplated by the terms thereof) or the Guarantor denies or disaffirms its obligations under the Guaranty. If an Event of Default with respect to any series of Securities at the time Outstanding occurs and is continuing, then, and in each and every such case, unless the principal of all of the Securities of such series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of such series, by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal amount (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal as may be specified in the terms of such series or if so provided pursuant to Section 2.6 for Securities of any series, such other amount as is specified pursuant thereto) of all of the Securities of such series and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable. -34- The foregoing provisions, however, are subject to the condition that if, at any time after the principal (or, if the Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof or if so provided pursuant to Section 2.6 for Securities of any series, such other amount as is specified pursuant thereto) of the Securities of any series shall have been so declared due and payable, and before any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter provided, (a) the Issuer or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest, if any, upon all the Securities of such series and the principal of any and all Securities of such series which shall have become due otherwise than by such declaration of acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest, if any, at the Overdue Rate applicable to such series to the date of such payment or deposit), and all amounts payable to the Trustee pursuant to Section 5.5, and (b) any and all Events of Default under the Indenture with respect to such series of Securities other than the non-payment of the principal of such Securities which shall have become due by such declaration of acceleration, shall have been cured, waived or otherwise remedied as provided herein or provision shall have been made therefor to the satisfaction of the Trustee, then and in every such case the Holders of not less than a majority in aggregate principal amount of the Securities of such series then Outstanding, by written notice to the Issuer, the Guarantor and the Trustee, may rescind and annul such declaration and its consequences with respect to such series, but no such rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities. If the Securities of any series provide the amount other than the face amount thereof will be payable upon the maturity thereof or a declaration of acceleration of the maturity thereof, for purposes of this Section 4.1 the principal amount of such Securities shall be deemed to be such amount as shall be due and payable upon the acceleration of the of the maturity thereof, except as may otherwise be provided with respect to such Securities pursuant to Section 2.6. If the Securities of any series provide that an amount other than the face amount thereof will be payable upon the maturity thereof or upon a declaration of acceleration of the maturity thereof, for purposes of this Section 4.1 the principal amount of such Securities shall be -35- deemed to be such amount as shall be due and payable upon the acceleration of the maturity thereof, except as may otherwise be provided with respect to such Securities pursuant to Section 2.6. SECTION 4.2 Payment of Securities on Default; Suit Therefor. The ----------------------------------------------- Issuer covenants that (a) in case a default shall be made in the payment of any installment of interest on any of the Securities of any series as and when such interest shall have become due and payable, and such default shall have continued for a period of 30 days or (b) in case a default shall be made in the payment of the principal of any of the Securities of any series as and when the same shall have become due and payable, whether upon maturity of the Securities of such series or upon redemption or by declaration or otherwise, or (c) in case of a default in the making or satisfaction of any sinking fund payment or analogous obligation when the same becomes due by the terms of the Securities of any series -- then, upon demand of the Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of the Securities of such series the whole amount then due and payable on all Securities of such series for principal and interest, if any, as the case may be (with interest to the date of such payment upon the overdue principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest, if any, at the Overdue Rate applicable to Securities of such series); and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, and any further amounts payable to the Trustee pursuant to Section 5.5. Until such demand is made by the Trustee, the Issuer may pay the principal of and interest, if any, on the Securities of any series to the registered Holders, whether or not the principal of and interest, if any, on the Securities of such series be overdue. In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Issuer or other obligor upon such Securities and collect in the manner provided by law out of the property of the Issuer or other obligor upon such Securities, wherever situated, the monies adjudged or decreed to be payable. In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Issuer, the Guarantor or any other obligor upon the Securities of any series under Title 11 of the United States Code or any other similar applicable Federal or state law, or in case a receiver, trustee in bankruptcy or similar official shall have been appointed for the property of the Issuer, the Guarantor or such other obligor, or in case of any other similar judicial proceedings relative to the Issuer, the Guarantor or other obligor upon the Securities of any series, or to the creditors or property of the Issuer, the Guarantor or such other obligor, the Trustee, irrespective of whether the principal of any Securities 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 pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise: -36- (a) to file and prove a claim or claims for the whole amount of principal (or, if the Securities of any series are Original Issue Discount Securities or if the Securities of any series provide that an amount other than the face thereof will or may be payable upon maturity thereof or upon a declaration of acceleration thereof, such amount as may be due and payable with respect to such series pursuant to a declaration in accordance with Section 4.1) and interest, if any, owing and unpaid in respect of the Securities of any series, and, in case of any judicial proceedings, to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for any amounts payable to the Trustee pursuant to Section 5.5) and of the Securityholders allowed in any judicial proceedings relating to the Issuer, the Guarantor or other obligor upon the Securities of any series, or to the creditors or property of the Issuer, the Guarantor or such other obligor, (b) unless prohibited by applicable law and regulations, to vote on behalf of the Holders of the Securities of any series in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or of a person performing similar functions in comparable proceedings, and (c) to collect and receive any monies or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Securityholders and of the Trustee on their behalf (after deduction of costs and expenses of collection, and any further amounts payable to the Trustee pursuant to Section 5.5 and incurred by it up to the date of distribution); and any trustee in bankruptcy, receiver or other similar official is hereby authorized by each of the Securityholders to make payments to the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders, to pay to the Trustee costs and expenses of collection, and any further amounts payable to the Trustee pursuant to Section 5.5 and incurred by it up to the date of distribution. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition affecting the Securities of any series or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar person. All rights of action and of asserting claims under this Indenture, or under the Securities of any series, may be enforced by the Trustee without the possession of any of the Securities of such series or the production thereof on any trial or other proceedings relative thereto, and any such action or proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, shall be for the ratable benefit of the Holders of the Securities in respect of which such action was taken. In any proceedings brought by the Trustee (and also any proceedings in which a declaratory judgment of a court may be sought as to the interpretation or construction of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to -37- represent all the Holders of the Securities to which such proceedings relate, and it shall not be necessary to make any Holders of such Securities parties to any such proceedings. SECTION 4.3 Application of Moneys Collected by Trustee. Any monies ------------------------------------------ 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 the case of distribution of such monies on account of principal or interest, upon presentation of the several Securities in respect of which monies have been collected and stamping (or otherwise noting) thereon the payment, or issuing Securities in reduced principal amounts in exchange for the presented Securities of like series (or, in the case of Securities of a series issued in more than one Tranche, of the same Tranche) and tenor if only partially paid, or upon surrender thereof if fully paid: FIRST: To the payment of amounts due to the Trustee pursuant to Section 5.5; SECOND: In case the principal of the Outstanding Securities in respect of which monies have been collected shall not have become and be then due and payable, to the payment of interest, if any, on the Securities in default in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee and to the extent permitted by applicable law) upon the overdue installments of interest at the Overdue Rate applicable to such Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or preference; THIRD: In case the principal of the Outstanding Securities in respect of which monies have been collected shall have become and shall be then due and payable by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon such Securities for principal and interest, if any, with interest upon the overdue principal, and (to the extent that such interest has been collected by the Trustee and to the extent permitted by applicable law) upon overdue installments of interest, if any, at the Overdue Rate applicable to such Securities; and in case such monies shall be insufficient to pay in full the whole amount so due and unpaid upon such Securities, then to the payment of such principal and interest, if any, without preference or priority of principal over interest, if any, or of interest, if any, over principal, or of any installment of interest, if any, over any other installment of interest, if any, or of any Security over any other Security, ratably to the aggregate of such principal and accrued and unpaid interest, if any; and FOURTH: To the payment of the remainder, if any, to the Issuer or, to the extent that such monies were provided by the Guarantor, to the Guarantor, or their respective successors and assigns. SECTION 4.4 Proceedings by Trustee. In case an Event of Default ---------------------- hereunder has occurred, has not been waived and is continuing, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted -38- in this Indenture or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law. SECTION 4.5 Restoration of Rights on Abandonment of Proceedings. In --------------------------------------------------- case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee, then and in every such case the Issuer, the Guarantor, the Trustee and the Securityholders shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Issuer, the Guarantor, the Trustee and the Securityholders shall continue as though no such proceedings had been taken. SECTION 4.6 Proceedings by Securityholders. No Holder of any ------------------------------ Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this Indenture, or for the appointment of a trustee in bankruptcy, receiver or other similar official or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of default with respect to Securities of such series and of the continuance thereof, as hereinbefore provided, and unless also the Holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon the Trustee to institute such action, suit or proceedings in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby and the Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have neglected or refused to institute any such action, suit or proceeding and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 4.8 during such 60 day period; it being understood and intended, and being expressly covenanted by the taker and Holder of every Security with every other taker and Holder and the Trustee, that no one or more Holders of any Securities shall have any right in any manner whatever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder of Securities, or to obtain or seek to obtain priority over or preference to any other Holder or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities of the applicable series. For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity. SECTION 4.7 Remedies Cumulative and Continuing. Except as provided in ---------------------------------- Section 4.6, no right or remedy herein conferred upon or reserved to the Trustee or to the Securityholders 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. No delay or omission of the Trustee or of any Securityholder to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or an -39- acquiescence therein; and, subject to Section 4.6, every power and remedy given by this Indenture or by law to the Trustee or to the Securityholders of any or all series, as the case may be, may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders of such series or all series, as the case may be. SECTION 4.8 Control by Securityholders. The Holders of not less than -------------------------- a majority in aggregate principal amount of the Securities of each series affected at the time Outstanding (with each such series voting separately as a class) shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee by this Indenture with respect to Securities of such series. Notwithstanding any of the foregoing, no such direction shall be otherwise than in accordance with law and the provisions of this Indenture and (subject to the requirements of the Trust Indenture Act of 1939) the Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, shall determine that the action or proceeding so directed may not lawfully be taken or would be unjustly prejudicial to the Holders of such Securities not taking part in such direction, or the Holders of the Securities of any other series, or if the Trustee in good faith by its board of directors, the executive committee or a trust committee of directors or Responsible Officers of the Trustee shall determine that the action or proceedings so directed would involve the Trustee in personal liability. Nothing in this Indenture shall impair the right of the Trustee in its discretion to take any action deemed proper by the Trustee and which is not inconsistent with such direction or directions by Securityholders. SECTION 4.9 Waiver of Past Defaults. Prior to the declaration of the ----------------------- acceleration of the maturity of the Securities of any particular series the Holders of not less than a majority in aggregate principal amount of the Securities of such particular series at the time Outstanding may on behalf of the Holders of all the Securities of such particular series waive any past default or Event of Default with respect to such particular series and its consequences, except a default in respect of a covenant or provision hereof which cannot be modified or amended without the consent of the Holder of each Outstanding Security affected as provided in Section 7.2. In the case of any such waiver, the Issuer, the Trustee and the Holders of the Securities of each series affected shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. Upon any such waiver, such default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured, and not to have occurred for every purpose of this Indenture. -40- ARTICLE FIVE CONCERNING THE TRUSTEE ---------------------- SECTION 5.1 Reliance on Documents, Opinions, etc.; No Requirement for --------------------------------------------------------- Expenditure of Own Funds. Subject to the provisions of the Trust Indenture Act - ------------------------ of 1939: (a) prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, in the absence of bad faith on the part of the Trustee, upon certificates or opinions 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); (b) any request, direction, order or demand of the Issuer and the Guarantor mentioned herein shall be sufficiently evidenced by an Officers' Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Resolution may be evidenced to the Trustee by a copy thereof certified by the secretary or an assistant secretary of the Issuer or the Guarantor, as applicable; (c) the Trustee may consult with counsel of its selection and any advice of such counsel or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with such advice or Opinion of Counsel; (d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred therein or thereby; (e) prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, 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, consent, order, bond, direction, note or other paper or document unless requested in writing so to do by the Holders of not less than a majority in aggregate principal amount of the Securities of any series affected then Outstanding; provided that, if the payment within a reasonable -------- time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity against such expenses or liabilities as a condition to proceeding; and the reasonable -41- expenses of every such investigation shall be paid by the Issuer or, if paid by the Trustee, shall be promptly repaid by the Issuer upon demand; (f) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys not regularly in its employ and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder; (g) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (h) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in the absence of negligence or bad faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; and (i) the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture. None of the provisions contained in this Indenture shall be construed as requiring the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers. 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 requirements of the Trust Indenture Act of 1939. SECTION 5.2 No Responsibility for Recitals, etc. The recitals ------------------------------------ contained herein and in the Securities, except the Trustee's certificates of authentication, shall be taken as the statements of the Issuer and the Guarantor, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or sufficiency of this Indenture or of the Securities, provided that the Trustee shall not be relieved of its duty to authenticate Securities only as authorized by this Indenture. The Trustee shall not be accountable for the use or application by the Issuer and the Guarantor of any of the Securities or of the proceeds thereof. SECTION 5.3 Trustee and Agents May Hold Securities. The Trustee or -------------------------------------- any agent of the Issuer, the Guarantor or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not the Trustee or such agent and, subject to the requirements of the Trust Indenture Act of 1939, may otherwise deal with the Issuer and the Guarantor and receive, collect, hold and retain collections -42- from the Issuer and the Guarantor with the same rights it would have if it were not the Trustee or such agent. SECTION 5.4 Moneys to Be Held in Trust. Subject to the provisions of -------------------------- Sections 9.3 and 9.4, all monies received by the Trustee or any paying agent, all money and U.S. Government Obligations deposited with the Trustee pursuant to Section 9.8 and all money received by the Trustee in respect of U.S. Government Obligations deposited with the Trustee pursuant to Section 9.8, shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by mandatory provisions of law. Neither the Trustee nor any paying agent shall be under any liability for interest on any monies received by it hereunder, except such as it may agree in writing with the Issuer to pay thereon. So long as no Event of Default shall have occurred and be continuing, all interest allowed on any such monies shall be paid from time to time upon the written order of the Issuer signed by one of its officers, who is one of the officers who may sign an Officers' Certificate. SECTION 5.5 Compensation and Expenses of Trustee. The Issuer ------------------------------------ covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, such compensation as shall be agreed to from time to time in writing by the Issuer and the Trustee (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) and, except as otherwise expressly provided, the Issuer will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by or on behalf of it in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its negligence or bad faith. The Issuer also covenants to indemnify the Trustee for, and to hold it harmless against, any and all loss, liability, damage, claim or expense, including taxes (other than taxes based on the income of the Trustee) incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this Indenture or the trusts hereunder and its duties hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the Issuer, the Guarantor, a Holder or any other Person) or liability in the premises. The obligations of the Issuer under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture. Such additional indebtedness shall be secured by a lien prior to that of 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. When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 4.1(e) or Section 4.1(f), the expenses (including the reasonable fees and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law. SECTION 5.6 Right of Trustee to Rely on Officers' Certificate, etc. ------------------------------------------------------- Subject to the requirements of the Trust Indenture Act of 1939, whenever in the administration of the trusts -43- of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action to be taken hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers' Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof. SECTION 5.7 Eligibility of Trustee. The Trustee for each series of ---------------------- Securities hereunder shall at all times be a corporation which complies with the requirements of the Trust Indenture Act of 1939, having a combined capital and surplus of at least U.S.$50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation at any time shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in Section 5.8. SECTION 5.8 Resignation or Removal of Trustee; Appointment of ------------------------------------------------- Successor Trustee. (a) The Trustee, or any trustee or trustees hereafter - ----------------- appointed, may at any time resign with respect to one or more or all series of Securities by giving written notice of resignation to the Issuer and the Guarantor. Upon receiving such notice of resignation, the Issuer shall promptly appoint a successor trustee or trustees with respect to the applicable series by written instrument in duplicate, executed by authority of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee or trustees. If no successor trustee shall have been so appointed with respect to any series and have accepted appointment within 30 days after the mailing of such notice of resignation, the resigning trustee may, at the expense of the Issuer, petition any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, subject to the requirements of the Trust Indenture Act of 1939, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee. (b) In case at any time any of the following shall occur: (i) the Trustee shall cease to be eligible in accordance with the provisions of Section 5.7 with respect to any series of Securities and shall fail to resign after written request therefor by the Issuer or the Guarantor or by any Securityholder; or (ii) the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the Trustee or of its property shall be appointed, or any public officer shall take charge or -44- control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation; then, in any such case, the Issuer by Resolution may remove the Trustee with respect to the applicable series of Securities (or all series, if required) and appoint a successor trustee for such series by written instrument, in duplicate, executed by authority of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the requirements of the Trust Indenture Act of 1939, any Securityholder who has been a bona fide Holder of a Security or Securities 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 removal of the Trustee and the appointment of a successor trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee with respect to such series. (c) The Holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove the Trustee with respect to Securities of such series and appoint a successor trustee with respect to the Securities of such series by delivering to the Trustee so removed, to the successor trustee so appointed and to the Issuer and the Guarantor the evidence provided for in Section 6.1 of the action in that regard taken by the Securityholders. If no successor trustee shall have been so appointed with respect to any series and have accepted appointment within 30 days after the mailing of such notice of removal, the Trustee being removed may, at the expense of the Issuer, petition any court of competent jurisdiction for the appointment of a successor trustee. (d) Any resignation or removal of the Trustee with respect to any series and any appointment of a successor trustee with respect to such series pursuant to any of the provisions of this Section 5.8 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 5.9. SECTION 5.9 Acceptance of Appointment by Successor Trustee. Any ---------------------------------------------- successor trustee appointed as provided in Section 5.8 shall execute, acknowledge and deliver to the Issuer, the Guarantor and to its predecessor Trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor Trustee with respect to all or any applicable series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee for such series hereunder; but, nevertheless, on the written request of the Issuer or of the successor trustee, upon payment (or due provision therefor) of any amounts then due it pursuant to Section 5.5, the predecessor Trustee ceasing to act shall, subject to Section 9.4, pay over to the successor trustee all monies at the time held by it hereunder and shall execute and deliver an instrument transferring to such successor trustee all such rights, powers, duties and obligations. Upon request of any such successor trustee, the Issuer shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such -45- rights and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 5.5. If a successor trustee is appointed with respect to the Securities of one or more (but not all) series, the Issuer, the Guarantor, the predecessor Trustee and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such trustee. No successor trustee with respect to any series of Securities shall accept appointment as provided in this Section 5.9 unless at the time of such acceptance such successor trustee shall, with respect to such series, be qualified under the provisions of the Trust Indenture Act of 1939 and eligible under the provisions of Section 5.7. Upon acceptance of appointment by any successor trustee as provided in this Section 5.9, the Issuer shall mail notice thereof to the Holders of Securities of any series for which such successor trustee is acting as trustee at their last addresses as they shall appear in the Register. If the Issuer fails to mail such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the Issuer's expense. SECTION 5.10 Merger, Conversion, Consolidation or Succession to -------------------------------------------------- Business of Trustee. 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, that such corporation shall be qualified under the provisions of the - -------- Trust Indenture Act of 1939 and eligible under the provisions of Section 5.7, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture any of the Securities of any series shall have been authenticated but not delivered, any such successor to the Trustee by merger, conversion or consolidation may adopt the certificate of authentication of any predecessor Trustee and deliver such Securities so authenticated; and, in case at that time any of the Securities of any series shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of such successor to the Trustee or, if such successor to the Trustee is a successor by merger, conversion -46- or consolidation, in the name of any predecessor hereunder; and in all such cases such certificate shall have the full force which the certificate of the Trustee shall have as provided anywhere in the Securities of such series or in this Indenture. SECTION 5.11 Reports by Trustee to Securityholders. Within 60 days ------------------------------------- after December 31 in each year, beginning with the December 31 following the date of this Indenture, the Trustee shall mail to the Securityholders a brief report dated as of such reporting date in compliance with (S) 313(a) of the Trust Indenture Act of 1939 if such report is required by Section (S) 313(a). The Trustee also shall comply with (S) 313(b) of the Trust Indenture Act of 1939. The Trustee shall also transmit by mail all reports as required by (S) 313(c) of the Trust Indenture Act of 1939. The Issuer shall promptly notify the Trustee when the Securities are listed on any stock exchange and of any delisting thereof. ARTICLE SIX CONCERNING THE SECURITYHOLDERS ------------------------------ SECTION 6.1 Action by Securityholders. Whenever in this Indenture it ------------------------- is provided that the Holders of a specified percentage in aggregate principal amount of the Securities of any or all series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action) the fact that at the time of taking any such action the Holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by such Securityholders in person or by agent or proxy appointed in writing, or (b) by the record of such Holders of Securities voting in favor thereof at any meeting of such Securityholders duly called and held in accordance with the provisions of this Article, or (c) by a combination of such instrument or instruments and any such record of such a meeting of such Securityholders; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments and/or such record are delivered to the Trustee. Proof of execution of any instrument or of a writing appointing any such agent or proxy shall be sufficient for any purpose of this Indenture and (subject to the requirements of the Trust Indenture Act of 1939 and Section 5.1) conclusive in favor of the Trustee, the Issuer and the Guarantor, if made in the manner provided in this Article. In determining whether the Holders of the requisite principal amount of Outstanding Securities of any or all series have taken any action (including the making of any demand or request), the giving of any notice, consent or waiver (or the taking of any other action) hereunder and in determining voting rights of any Holder of a Security hereunder (i) the principal amount of Original Issue Discount Securities that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 4.1, (ii) in the case of Securities which provide that an amount other than the face amount thereof will or may be payable upon the maturity thereof or upon a declaration of acceleration of the maturity thereof, the principal amount of such Securities that shall be deemed to be Outstanding for such purposes shall be the amount that would be due and payable in respect of such Securities as of the -47- date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 4.1, and (iii) the principal amount of any Security, the principal amount of which is denominated in a currency other than U.S. dollars or in units of currencies or in a composite currency (the "Specified Currency") shall be deemed to be that amount of U.S. dollars which could have been obtained by the face amount of such Specified Currency at the Market Exchange Rate. For purposes of this Section 6.1, "Market Exchange Rate" means, unless otherwise specified for a Specified Currency with respect to any series of Securities pursuant to Section 2.6, the noon U.S. dollar buying rate in New York City for cable transfers of the Specified Currency published by the Federal Reserve Bank of New York. All decisions and determinations of the Trustee regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall be in its sole discretion and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all purposes and irrevocably binding upon the Issuer, the Guarantor and all Securityholders. If the Issuer shall solicit from the Securityholders any demand, request, notice, consent, waiver or the taking of any other action (other than in accordance with the Securityholders voting provisions set forth in Sections 6.6 through 6.14 of this Article), the Issuer may, at its option, by a Resolution, fix in advance a record date for the determination of Holders entitled to give such demand, request, notice, consent or waiver or to take such other action, but the Issuer shall have no obligation to do so. If such a record date is fixed, such demand, request, notice, consent, waiver or such other action may be given before or after the record date, but only the Securityholders of record at the close of business on the record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite percentage of Securities Outstanding have authorized or agreed or consented to such demand, request, notice, consent, waiver or taking of any other action, and for that purpose the Securities Outstanding shall be computed as of the record date; provided, that no such demand, request, notice, consent, -------- waiver or taking of any other action by the Holders on the record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date. SECTION 6.2 Proof of Execution by Securityholders. Subject to the ------------------------------------- requirements of the Trust Indenture Act of 1939 and Sections 5.1 and 6.11, proof of the execution of any instrument by a Securityholder or his agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The ownership of Securities shall be proved by the Register or by a certificate of the Person designated by the Issuer to keep the Register and to act as repository in accordance with the provisions of Section 2.12. The record of any Securityholders' meeting shall be proved in the manner provided in Section 6.12. SECTION 6.3 Holders to Be Treated as Owners. The Issuer, the ------------------------------- Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the Trustee may deem and treat the Person in whose name any Security shall be registered in the Register for such series as the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any -48- notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of and, subject to the provisions of this Indenture, interest, if any, on such Security and for all other purposes; and none of the Issuer, the Guarantor, the Trustee or any agent of the Issuer, the Guarantor or the Trustee shall be affected by any notice to the contrary. All such payments so made to any such Person, or upon his order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for monies payable upon any such Security. SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding. In ------------------------------------------------- determining whether the Holders of the requisite aggregate principal amount of Outstanding Securities of any or all series have concurred in any demand, request, notice, direction, consent or waiver under this Indenture, Securities which are owned by the Issuer, the Guarantor or any other obligor on the Securities with respect to which such determination is being made or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer, the Guarantor or any other obligor on the Securities with respect to which such determination is being made shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such demand, request, notice, direction, consent or waiver only Securities which a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding for purposes of this Section 6.4 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 Issuer, the Guarantor or any other obligor upon the Securities or any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer, the Guarantor or any other obligor on the Securities. In case of a dispute as to such right, the advice of counsel shall be full protection in respect of any decision made by the Trustee in accordance with such advice. Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an Officers' Certificate listing and identifying all Securities, if any, known by the Issuer to be owned or held by or for the account of any of the above-described persons; and, subject to the requirements of the Trust Indenture Act of 1939 and Section 5.1, the Trustee shall, in the absence of manifest error, accept such Officers' Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any such determination. SECTION 6.5 Right of Revocation of Action Taken. At any time prior ----------------------------------- to (but not after) the evidencing to the Trustee, as provided in Section 6.1, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action, any Holder of a Security the serial number or other distinguishing symbol of which is shown by the evidence to be included among the serial numbers or other distinguishing symbols of the Securities the Holders of which have consented to such action may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Article, revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Securities issued in exchange or substitution therefor, irrespective of whether or not any notation in regard thereto is made upon any such Security. Any action taken by the -49- Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action shall be conclusively binding upon the Issuer, the Guarantor, the Trustee and the Holders of all the Securities affected by such action. SECTION 6.6 Securityholders' Meetings; Purposes. A meeting of ----------------------------------- Holders of Securities of any series or all series, as the case may be, may be called at any time and from time to time pursuant to the provisions of this Article Six for any of the following purposes: (1) to give any notice to the Issuer, the Guarantor or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of any default or Event of Default hereunder and its consequences, or to take any other action authorized to be taken by Securityholders pursuant to any of the provisions of Article Four; (2) to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article Five; (3) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 7.2; or (4) to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Securities of any series or all series, as the case may be, under any other provision of this Indenture or under applicable law. SECTION 6.7 Call of Meetings by Trustee. The Trustee may at any time --------------------------- call a meeting of Holders of Securities of any series or all series, as the case may be, to take any action specified in Section 6.6, to be held at such time and at such place in the Borough of Manhattan, The City of New York, as the Trustee shall determine. Notice of every meeting of the Holders of Securities of any series or all series, as the case may be, 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 mailed to Holders of Outstanding Securities of each series affected at their addresses as they shall appear in the Register as of a date not more than 15 days prior to the mailing of such notice. Such notice shall be mailed not less than 20 nor more than 90 days prior to the date fixed for the meeting. Any meeting of the Holders of Securities of any series or all series, as the case may be, shall be valid without notice if the Holders of all Securities of any series then Outstanding are present in person or by proxy, or, if notice is waived before or after the meeting by the Holders of all Securities of any series outstanding, and if the Issuer, the Guarantor and the Trustee are either present by duly authorized representatives or have, before or after the meeting waived notice. SECTION 6.8 Call of Meetings by Issuer or Securityholders. In case --------------------------------------------- at any time the Issuer, pursuant to a Resolution, or the Holders of at least 10% in aggregate principal amount of the Securities then Outstanding of any or all series, as the case may be, shall have requested the Trustee to call a meeting of the Holders of Securities of such series or all series, as the case may -50- be, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within 20 days after receipt of such request, then the Issuer or such Securityholders, in the amount specified above, may determine the time and the place in said Borough of Manhattan for such meeting and may call such meeting to take any action authorized in Section 6.6, by mailing notice thereof as provided in Section 6.7. SECTION 6.9 Qualifications for Voting. To be entitled to vote at any ------------------------- meeting of Securityholders a Person shall (a) be a Holder of one or more Securities with respect to which such meeting is being held or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more such Securities. The only Persons who shall be entitled to be present or to speak at any meeting of Securityholders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Issuer and the Guarantor and their respective counsel. SECTION 6.10 Quorum; Adjourned Meetings. The Persons entitled to -------------------------- vote a majority in aggregate principal amount of the Securities of the relevant series at the time Outstanding shall constitute a quorum for the transaction of all business specified in Section 6.6. No business shall be transacted in the absence of a quorum (determined as provided in this Section 6.10). In the absence of a quorum within 30 minutes after the time appointed for any such meeting, the meeting shall, if convened at the request of the Holders of Securities (as provided in Section 6.8), be dissolved. In any other case the meeting shall be adjourned for a period of not less than ten days as determined by the chairman of the meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting shall be further adjourned for a period of not less than ten days as determined by the chairman of the meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 6.7, except that such notice must be mailed not less than five days prior to the date on which the meeting is scheduled to be reconvened. Any Holder of a Security who has executed in person or by proxy and delivered to the Trustee an instrument in writing complying with the provisions of Section 6.2 shall be deemed to be present for the purposes of determining a quorum and be deemed to have voted; provided, that such Holder of a Security -------- shall be considered as present or voting only with respect to the matters covered by such instrument in writing. SECTION 6.11 Regulations. Notwithstanding any other provisions of ----------- this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Securityholders, in regard to proof of the holding of Securities 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 determine. The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Issuer or by Securityholders as provided in Section 6.8, in which case the Issuer or the Securityholders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent -51- secretary of the meeting shall be elected by the vote of the Holders of a majority of the principal amount of the Outstanding Securities present at the meeting. Subject to the provisions of Section 6.4, at any meeting each Holder of Securities with respect to which such meeting is being held or proxy shall be entitled to one vote for each U.S.$1,000 (or if any Securities are denominated in a currency other than U.S. dollars or in units of currencies or in a composite currency, the equivalent of U.S.$1,000 in the applicable currency, units of currencies or composite currency calculated using the Market Exchange Rate) principal amount (or in the case of Original Issue Discount Securities or, in the case of Securities which provide that an amount other than the face amount thereof will or may be payable upon the maturity thereof or upon a declaration of acceleration of the maturity thereof, such principal amount to be determined as provided in the definition of "Outstanding" in Section 1.1) of such Securities held or represented by him; provided, however, that no vote -------- ------- shall be cast or counted at any meeting in respect of any such 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 other than by virtue of such Securities held by him or instruments in writing as aforesaid duly designating him as the Person to vote on behalf of other such Securityholders. Any meeting of Holders of Securities with respect to which a meeting was duly called pursuant to the provisions of Section 6.7 or 6.8 may be adjourned from time to time by the Holders of a majority of the principal amount of the Outstanding Securities present, whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice. SECTION 6.12 Voting. The vote upon any resolution submitted to any ------ meeting of Holders of Securities with respect to which such meeting is being held shall be by written ballots on which shall be subscribed the signatures of such Holders of Securities or of their representatives by proxy and the principal amount (in the case of Original Issue Discount Securities or, in the case of Securities which provide that an amount other than the face amount thereof will or may be payable upon the maturity thereof or upon a declaration of acceleration of the maturity thereof, such principal amount to be determined as provided in the definition of "Outstanding" in Section 1.1) and number or numbers or other distinguishing symbol or symbols of such Securities 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 in duplicate of the proceedings of each meeting of Securityholders 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 facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided in Section 6.7. The record shall show the principal amount of the Securities (in the case of Original Issue Discount Securities or, in the case of Securities which provide that an amount other than the face amount thereof will or may be payable upon the maturity thereof or upon a declaration of acceleration of the maturity thereof, such principal amount to be determined as provided in the definition of "Outstanding" in Section 1.1) voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Issuer and the other to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. -52- Any record so signed and verified shall be conclusive evidence of the matters therein stated. SECTION 6.13 No Delay of Rights by Meeting. Nothing in this Article ----------------------------- Six shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Securityholders of any or all series or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Securityholders of any or all such series under any of the provisions of this Indenture or of the Securities. SECTION 6.14 Written Consent in Lieu of Meeting. The written ---------------------------------- authorization or consent by the Holders of the requisite percentage in aggregate principal amount of Outstanding Securities of one or more series herein provided, entitled to vote at any such meeting, evidenced as provided in Section 6.1 and filed with the Trustee, shall be effective in lieu of a meeting of the Holders of Securities of such series, with respect to any matter provided for in this Article Six. ARTICLE SEVEN SUPPLEMENTAL INDENTURES ----------------------- SECTION 7.1 Supplemental Indentures Without Consent of ------------------------------------------ Securityholders. The Issuer and the Guarantor, each when authorized by, or - --------------- pursuant to a Resolution, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act of 1939 as in force at the date of the execution thereof) for one or more of the following purposes: (a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities of one or more series any property or assets; (b) to evidence the succession of another entity to the Issuer or the Guarantor, or successive successions, and the assumption by the successor entity of the covenants, agreements and obligations of the Issuer or the Guarantor, as the case may be, pursuant to Article Eight; (c) to add to the covenants of the Issuer or the Guarantor such further covenants, restrictions, conditions or provisions as the Issuer, the Guarantor and the Trustee shall consider to be for the benefit of the Holders of one or more series of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all series of Securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Issuer or the Guarantor; (d) to add additional Events of Default and to provide with respect thereto for any particular periods of grace after default (which may be shorter or longer than that allowed in the case of other defaults) or for immediate enforcement upon such default or for any limitation of the remedies available to the Trustee upon such default; -53- (e) to provide for the issuance under this Indenture of Securities in bearer form (including Securities registrable as to principal only) with or without interest coupons and to provide for exchangeability of such Securities with the Securities of the same series or Tranche, as the case may be, issued hereunder in fully registered form and to make all appropriate changes for such purpose; (f) to cure any ambiguity or to correct or supplement any provision contained herein, in the Securities of any series or in the Guaranty or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture; or to change or eliminate any provision or to make such other provisions in regard to matters or questions arising under this Indenture or under any supplemental indenture as the Issuer or the Guarantor may deem necessary or desirable and which shall not adversely affect the interests of the Holders of the Securities at the time Outstanding; (g) to establish the form or terms of Securities of any series as permitted by Sections 2.1 and 2.6; (h) to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Section 5.9; (i) to add to or change any provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities convertible into other securities; or (j) to effectuate the provisions of Section 11.5(b). Upon the request of the Issuer and the Guarantor, accompanied by copies of Resolutions authorizing the execution of any such supplemental indenture, certified by the secretaries or assistant secretaries of each of the Issuer and the Guarantor, the Trustee shall join with the Issuer and the Guarantor in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to (but may in its discretion) enter into any such supplemental indenture which adversely affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. Any supplemental indenture authorized by the provisions of this Section may be executed by the Issuer, the Guarantor and the Trustee without the consent of the Holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 7.2. SECTION 7.2 Supplemental Indentures With Consent of Securityholders. ------------------------------------------------------- With the consent (evidenced as provided in Article Six) of the Holders of not less than a majority in -54- aggregate principal amount of the Securities of all series affected by such supplemental indenture (all such series voting as a single class) at the time Outstanding, the Issuer and the Guarantor, each when authorized by, or pursuant to a Resolution, and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act of 1939 as in force at the date of execution thereof) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights and obligations of the Issuer or the Guarantor or the rights of the Holders of the Securities of all such series; provided, that no such supplemental indenture shall (a) extend -------- the fixed maturity of any Security, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any amount payable on redemption or reduce the Overdue Rate thereof or make the principal thereof or interest thereon payable in any coin or currency other than that provided in the Security or reduce the amount of the principal of an Original Issue Discount Security (or a Security that provides that an amount other than the face amount thereof will or may be payable upon a declaration of acceleration of the maturity thereof) that would be due and payable upon an acceleration of the maturity thereof pursuant to Section 4.1 or the amount thereof provable in bankruptcy pursuant to Section 4.2, or impair, if the Securities provide therefor, any right of repayment at the option of the Securityholder, or impair the right of any holders of Securities of a series entitled to the conversion rights set forth in Article Eleven to receive securities upon the exercise of such conversion rights, without the consent of the Holder of each Security so affected, or (b) reduce the aforesaid percentage of Securities the consent of the Holders of which is required for any such supplemental indenture, without the consent of the Holders of each Security so affected, or (c) modify any of the provisions of Article Eleven or Article Thirteen in a manner adverse to the Holders of the Securities. 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 Securityholders of such series with respect to such covenant or provision, shall be deemed not to affect the rights under this Indenture of the Securityholders of any other series. The preceding sentence shall not, however, raise any inference as to whether or not a particular series is affected by any supplemental indenture not referred to in such sentence. Upon the request of the Issuer and the Guarantor, accompanied by copies of Resolutions authorizing the execution of any such supplemental indenture, certified by the secretaries or assistant secretaries of each of the Issuer and the Guarantor, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid and other documents, if any, required by Section 6.1, the Trustee shall join with the Issuer and the Guarantor in the execution of such supplemental indenture unless such supplemental indenture adversely affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture. It shall not be necessary for the consent of the Securityholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. -55- Promptly after the execution by the Issuer, the Guarantor and the Trustee of any supplemental indenture pursuant to the provisions of this Section 7.2, the Issuer shall mail a notice thereof to the Holders of Securities of each series affected thereby at their addresses as they shall appear in the Register, setting forth in general terms the substance of such supplemental indenture. Any failure of the Issuer to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture. SECTION 7.3 Effect of Supplemental Indenture. Upon the execution of -------------------------------- any supplemental indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Issuer, the Guarantor and the Holders of Securities of each series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes. SECTION 7.4 Certain Documents to Be Given to Trustee. The Trustee, ---------------------------------------- subject to the requirements of the Trust Indenture Act of 1939 and Section 5.1, may receive an Officers' Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article Seven complies with the requirements of this Article Seven. SECTION 7.5 Notation on Securities. Securities of any series ---------------------- authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article Seven may bear a notation in form approved by the Trustee for such series as to any matter provided for by such supplemental indenture or as to any action taken at any such meeting. If the Issuer or the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Issuer, to any modification of this Indenture contained in any such supplemental indenture may be prepared and executed (with the Guaranty endorsed thereon executed by the Guarantor) by the Issuer, authenticated by the Trustee and delivered in exchange for the Securities of such series then Outstanding. ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE ------------------------------------------------- SECTION 8.1 Issuer and Guarantor May Consolidate, etc., on Certain ------------------------------------------------------ Terms. (a) Nothing contained in this Indenture or in any of the Securities - ----- shall prevent any consolidation or merger of the Issuer with or into any other entity or entities (whether or not affiliated with the Issuer), or successive consolidations or mergers in which the Issuer or its successor or successors shall be a party or parties, or shall prevent any sale, conveyance or lease of all or substantially all the property of the Issuer, to any other entity (whether or not affiliated with the Issuer) authorized to acquire and operate the same; provided, however, and the Issuer hereby covenants and agrees, that -------- ------- upon any such consolidation, merger, sale, conveyance or lease, (i) the due and punctual payment of the principal of and interest, if any, on all of the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this -56- Indenture to be performed by the Issuer, shall be expressly assumed, by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by the entity (if other than the Issuer) formed by such consolidation, or into which the Issuer shall have been merged, or by the entity which shall have acquired or leased such property and (ii) the Issuer or such successor entity, as the case may be, shall not, immediately after such merger or consolidation, or such sale, conveyance or lease, be in default in the performance of any such covenant or condition. (b) Nothing contained in this Indenture or in any of the Securities or in the Guaranty shall prevent any consolidation or merger of the Guarantor with or into any other entity or entities (whether or not affiliated with the Guarantor), or successive consolidations or mergers in which the Guarantor or the successor or successors shall be a party or parties, or shall prevent any sale, conveyance or lease of all or substantially all the property of the Guarantor to any other entity (whether or not affiliated with the Guarantor) authorized to acquire and operate the same; provided, -------- however, and the Guarantor hereby covenants and agrees, that upon any such ------- consolidation, merger, sale, conveyance or lease (i) the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by the Guarantor and under the Guaranty shall be expressly assumed, by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by the entity (if other than the Guarantor) formed by such consolidation, or into which the Guarantor shall have been merged, or by the entity which shall have acquired or leased such property and (ii) the Guarantor or such successor entity, as the case may be, shall not, immediately after such merger or consolidation, or such sale, conveyance or lease, be in default in the performance of any such covenant or condition. SECTION 8.2 Successor Entity to Be Substituted. (a) In case of any ---------------------------------- consolidation, merger, sale, conveyance or lease referred to in Section 8.l and upon the assumption by the successor entity, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of, in the case of Section 8.1(a), the due and punctual payment of the principal of and interest, if any, on all of the Securities and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Issuer or, in the case of Section 8.1(b), the due and punctual performance of all covenants and conditions of this Indenture be performed by the Guarantor and under the Guaranty, such successor entity shall succeed to and be substituted for the Issuer or the Guarantor, as applicable, with the same effect as if it had been named herein as the party of the first part. In case of any such consolidation, merger, sale, conveyance or lease, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued or in the Guaranty endorsed thereon as may be appropriate. (b) In case of a successor entity to the Issuer, such successor entity thereupon may cause to be signed, and may issue either in its own name or in the name of Newmont Mining Corporation any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Issuer and delivered to the Trustee; and, upon the order of such successor entity instead of the Issuer and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered by the officers of the -57- Issuer to the Trustee for authentication, and any Securities which such successor entity thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof. In the event of any such sale or conveyance, but not any such lease, the Issuer or any successor entity which shall theretofore have become such in the manner described in this Article Eight shall be discharged from all obligations and covenants under this Indenture and the Securities and may be dissolved and liquidated. (c) In the case of a successor entity to the Guarantor, such successor entity thereupon may cause to be signed, and may issue in its own name or in the name of Newmont Gold Company the Guaranty with respect to any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Guarantor and delivered to the Trustee; and, upon the order of such successor entity instead of the Guarantor and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities on which the Guaranty is endorsed which previously shall have been signed and delivered by an officer of the Guarantor to the Trustee for authentication, and any Securities on which the Guaranty is endorsed which such successor entity thereafter shall cause to be signed and delivered to the Trustee for that purpose. Any such Guaranty with respect to Securities of any series shall in all respects have the same legal rank and benefit under this Indenture as the Guaranty with respect to Securities of the same series theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof. In the event of any such sale or conveyance, referred to in Section 8.1, but not any lease referred to in such Section, the Guarantor or any successor entity which shall theretofore have become such in the manner described in this Article Eight shall be discharged from all obligations and covenants under this Indenture and the Guaranty and may be dissolved and liquidated. SECTION 8.3 Opinion of Counsel and Officers' Certificate to Be Given -------------------------------------------------------- to Trustee. The Trustee, subject to the requirements of the Trust Indenture Act - ---------- of 1939 and Section 5.1, may receive an Opinion of Counsel and Officers' Certificate as conclusive evidence that any such consolidation, merger, sale, conveyance or lease and any such assumption complies with the provisions of this Article Eight. ARTICLE NINE SATISFACTION AND DISCHARGE -------------------------- OF INDENTURE; UNCLAIMED MONEYS ------------------------------ SECTION 9.1 Satisfaction and Discharge of Indenture. If at any time --------------------------------------- (a) the Issuer or the Guarantor shall have paid or caused to be paid the principal of and interest on all the Securities of any particular series Outstanding hereunder (other than Securities which have been mutilated, defaced, destroyed, lost or stolen and which have been replaced or paid as provided in -58- Section 2.13 or in lieu of or in substitution for which other Securities shall have been authenticated and delivered) as and when the same shall have become due and payable, or (b) the Issuer shall have delivered to the Trustee for cancellation all Securities of such series theretofore authenticated (other than any Securities of such series which shall have been mutilated, defaced, destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.13 or in lieu of or in substitution for which other Securities shall have been authenticated and delivered) and not theretofore cancelled, or (c)(i) all the Securities of such series not theretofore cancelled or delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and (ii) the Issuer or the Guarantor shall have irrevocably deposited or caused to be deposited with the Trustee as trust funds the entire amount in cash (other than monies repaid by the Trustee or any paying agent to the Issuer or the Guarantor in accordance with Section 9.4) sufficient to pay at maturity or upon redemption all Securities of such series not theretofore delivered to the Trustee for cancellation (other than any Securities of such series which shall have been mutilated, defaced, destroyed, lost or stolen which have been replaced or paid as provided in Section 2.13 or in lieu of or in substitution for which other Securities shall have been authenticated and delivered), including principal and interest, if any, due or to become due to such date of maturity or the date fixed for redemption, as the case may be, and if, in any such case, the Issuer or the Guarantor shall also pay or cause to be paid all other sums payable hereunder by the Issuer or the Guarantor with respect to Securities of such series, then this Indenture shall cease to be of further effect with respect to Securities of such series (except as to (i) rights of registration of transfer and exchange, and the Issuer's right of optional redemption, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of Securityholders to receive payments of principal thereof and interest, if any, thereon, and remaining rights of the Securityholders to receive mandatory sinking fund payments, if any, (iv) the rights, obligations and immunities of the Trustee hereunder, including its rights under Section 5.5, (v) the rights of the Securityholders of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them and (vi) the rights, if any, of Securityholders to convert such Securities), and the Trustee, on demand of the Issuer accompanied by an Officers' Certificate and an Opinion of Counsel and at the cost and expense of the Issuer, shall execute proper instruments acknowledging such satisfaction of and discharging this Indenture with respect to such series. SECTION 9.2 Application by Trustee of Funds Deposited for Payment of -------------------------------------------------------- Securities. Subject to Section 9.4, all monies deposited with the Trustee - ---------- pursuant to Section 9.1 shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Issuer acting as its own paying agent), to the Holders of the particular Securities of such series for the payment or redemption of which such monies have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest, if any. All money deposited with the Trustee pursuant to Section 9.1 (and held by it or any paying agent) for the payment of Securities subsequently converted into Common Stock shall be returned to the Issuer upon its written request. SECTION 9.3 Repayment of Moneys Held by Paying Agent. In connection ---------------------------------------- with the satisfaction and discharge of this Indenture with respect to Securities of any series, all monies then held by any paying agent, other than the Trustee, under the provisions of this Indenture with -59- respect to such series of Securities shall, upon demand of the Issuer or the Guarantor, be repaid to the Issuer, or to the extent that such monies were deposited by it, the Guarantor, or paid to the Trustee, and thereupon such paying agent shall be released from all further liability with respect to such monies. SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent ------------------------------------------------- Unclaimed for Two Years. Any monies deposited with or paid to the Trustee or - ----------------------- any paying agent for the payment of the principal of or interest, if any, on any Security of any series and not applied but remaining unclaimed for two years after the date upon which such principal or interest, as the case may be, shall have become due and payable, shall, upon the written request of the Issuer or the Guarantor and unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Issuer, or to the extent that such monies were deposited by it, the Guarantor, by the Trustee for such series or such paying agent, and the Holder of such Security of such series shall, unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look only to the Issuer for any payment which such Holder may be entitled to collect. SECTION 9.5 Issuer's Option to Effect Defeasance or Covenant ------------------------------------------------ Defeasance. Each of the Issuer or the Guarantor may at its option by or - ---------- pursuant to a Resolution, at any time, with respect to the Securities of any series, elect to have either Section 9.6 or Section 9.7 be applied to the Outstanding Securities of such series upon compliance with the conditions set forth below. SECTION 9.6 Defeasance and Discharge. Upon the Issuer's or the ------------------------ Guarantor's exercise of its option to utilize the provisions of this Section 9.6 and upon compliance with Section 9.8, the Issuer and the Guarantor shall be deemed to have been discharged from their obligations with respect to the Outstanding Securities of such series and the Guarantor shall be deemed to have been discharged from its obligations under the Guaranty with respect to such Outstanding Securities, in each case on the date the conditions set forth below are satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means that the Issuer shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned and the Guarantor shall be deemed to have discharged all of its obligations under the Guaranty (and the Trustee, at the expense of the Issuer, 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 Outstanding Securities of such series to receive, solely from the trust fund described in Section 9.8 and as more fully set forth in such Section, payments in respect of the principal of and interest on such Securities when such payments are due, (B) the obligations of the Issuer and the Guarantor with respect to such Securities under Sections 2.12, 2.13, 2.15, 3.2 and 3.3, (C) the rights, powers, trusts, duties, and immunities of the Trustee under Sections 2.13, 2.14, 2.15, 4.3, 5.5 and 9.4, and otherwise the duty of the Trustee to authenticate Securities of such series issued on registration of transfer or exchange, (D) the conversion rights, if any, of Holders of Outstanding Securities of such series and the Issuer's obligations, if any, with respect thereto under Article Eleven, and (E) this Article Nine. Subject to compliance with this Article Nine, the -60- Issuer may exercise its option under this Section 9.6 notwithstanding the prior exercise of its option under Section 9.7 with respect to the Securities of such series. SECTION 9.7 Covenant Defeasance. Upon the Issuer's or the ------------------- Guarantor's exercise of its option to utilize the provisions of to this Section 9.7 and upon compliance with Section 9.8, the Issuer and the Guarantor shall be released from their respective obligations, if any, under Sections 3.4 and 3.5 with respect to the Outstanding Securities of such series on and after the date the conditions set forth below are satisfied (hereinafter, "covenant defeasance"). For this purpose, such covenant defeasance means that, with respect to the Outstanding Securities of such series, the Issuer 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 with respect to it, whether directly or indirectly by reason of any reference elsewhere herein to any such Section (including under Section 4.1(d)) or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby. SECTION 9.8 Conditions to Defeasance or Covenant Defeasance. The ----------------------------------------------- following shall be the conditions to application of either Section 9.6 or Section 9.7 to the Outstanding Securities of such series: (a) The Issuer or the Guarantor, as the case may be, shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.7 who shall agree to comply with the provisions of this Article Nine 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, (A) money in an amount, or (B) U.S. Government Obligations 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, money in an amount, or (C) a combination thereof, 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 each installment of principal of and interest on the Outstanding Securities of such series 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 the Outstanding Securities of such series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities. For this purpose, "U.S. Government Obligations" means securities that are (x) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (y) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any such U.S. Government Obligation or a specific payment of principal of or interest on any such U.S. -61- Government Obligation held by such custodian for the account of the Holder of such 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 U.S. Government Obligation or the specific payment of principal of or interest on the U.S. Government Obligation evidenced by such depository receipt. (b) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit. (c) Such defeasance or covenant defeasance shall not cause the Trustee for the Securities of such series to have a conflicting interest for purposes of the Trust Indenture Act of 1939 with respect to any Securities of the Issuer. (d) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Issuer or the Guarantor is a party or by which it is bound. (e) Such defeasance or covenant defeasance shall not cause any Securities of such series then listed on any registered national securities exchange under the Securities Exchange Act of 1934, as amended, to be delisted. (f) In the case of an election under Section 9.6, the Issuer or the Guarantor shall have delivered to the Trustee an Opinion of Counsel (who may be counsel to the Issuer or the Guarantor) stating that (x) the Issuer or the Guarantor has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred. (g) In the case of an election under Section 9.7, the Issuer or the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred. (h) The Issuer or the Guarantor shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel (who may be counsel to the Issuer or the Guarantor), each stating that all conditions precedent provided for relating to either the defeasance under Section 9.6 or the covenant defeasance under Section 9.7 (as the case may be) have been complied with. -62- SECTION 9.9 Deposited Money and U.S. Government Obligations to Be ----------------------------------------------------- Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of - --------------------------------------------- Section 9.4, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee -- collectively, for purposes of this Section 9.9, the "Trustee") pursuant to Section 9.8 in respect of the Outstanding Securities of such series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any paying agent (including the Issuer acting as its own paying agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and interest, but such money need not be segregated from other funds except to the extent required by law. The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 9.8 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 the Outstanding Securities of such series. Anything in this Article Nine to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer or the Guarantor, as applicable, from time to time upon the Issuer's or the Guarantor's written request any money or U.S. Government Obligations held by it as provided in Section 9.8 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 an equivalent defeasance or covenant defeasance. ARTICLE TEN REDEMPTION OF SECURITIES AND SINKING FUNDS ------------------------------------------ SECTION 10.1 Applicability of Article. The provisions of this ------------------------ Article shall be applicable to the Securities of any series which are redeemable before their maturity and to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.6 for Securities of such series. SECTION 10.2 Notice of Redemption; Selection of Securities. In case --------------------------------------------- the Issuer shall desire to exercise any right to redeem all or any part of the Securities of any series in accordance with their terms, the Issuer shall fix a date for redemption and shall notify the Trustee in writing, at least 45 days before such redemption date. The Issuer, or at the request and at the expense of the Issuer, the Trustee, shall mail a notice of such redemption, at least 30 days and not more than 60 days prior to the date fixed for redemption, to the Holders of Securities of such series so to be redeemed in whole or in part at their last addresses as they shall appear in the Register. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice. Failure to give notice by mail, or any defect in the notice, to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series. -63- The notice of redemption to each such Holder shall specify the CUSIP number of the Securities, if any, the date fixed for redemption, the redemption price, the place or places of payment, if the Securities of such series are convertible at the option of the Holder into shares of Common Stock, the Conversion Price, the place or places of conversion, that Securities called for redemption may be converted at any time before the close of business on the third Business Day prior to the date fixed for redemption, or on such earlier date, if any, specified pursuant to Section 2.6 for Securities of such series, and if not converted prior to the close of business on such date, the right of conversion will be lost and that Holders who want to convert Securities must satisfy the requirements set forth in the terms thereof, that payment will be made upon presentation and surrender of such Securities, that any interest accrued to the date fixed for redemption will be paid as specified in such notice and that on and after said date any interest thereon or on the portions thereof to be redeemed will cease to accrue. If less than all of the Outstanding Securities of a series are to be redeemed, the notice of redemption shall specify the number or numbers or distinguishing symbol or symbols of the Securities to be redeemed. In case any Security of a series is to be redeemed in part only the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of such series in principal amount equal to the unredeemed portion thereof will be issued. Prior to the redemption date specified in the notice of redemption given as provided in this Section, the Issuer will deposit with the Trustee or with one or more paying agents (or, if the Issuer is acting as its own paying agent, segregate and hold in trust as required by the Trust Indenture Act of 1939) an amount of money (in the currency or units of currencies or composite currency in which the Securities so called for redemption are denominated or an appropriate equivalent thereof) sufficient to redeem on the redemption date all the Securities of such series or portions thereof so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption. If less than all the Outstanding Securities of a series are to be redeemed (or less than the full principal amount of each Security in such series is to be redeemed), the Issuer will deliver to the Trustee at least 60 days prior to the date fixed for redemption (or such shorter period if acceptable to the Trustee) an Officers' Certificate stating the aggregate principal amount of Securities to be redeemed and, if the Trustee is not acting as the repository of the Register for such series, a current list of all Outstanding Securities of such series. If less than all the Outstanding Securities of a series are to be redeemed, the Trustee shall select, in such manner as it shall deem appropriate and fair, Securities of such series to be redeemed in whole or in part; however, if less than all the Securities of any series with differing issue dates, interest rates and stated maturities are to be redeemed, the Issuer 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. Except as otherwise specified for Securities of a particular series pursuant to Section 2.6, Securities may be redeemed in part in amounts equal to the minimum authorized denomination for Securities of such series or any multiple thereof. The Trustee shall promptly notify the Issuer in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed. -64- For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities of any series shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed. SECTION 10.3 Payment of Securities Called for Redemption. If notice ------------------------------------------- of redemption has been given as provided in Section 10.2, the Securities or portions of Securities specified in such notice shall become due and payable on the date and at the place or places stated in such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption, and on and after said date (unless the Issuer shall default in the payment of such Securities or portions thereof at the redemption price, together with interest accrued to said date) interest on the Securities or portions of Securities so called for redemption shall cease to accrue and, except as provided in Sections 5.4 and 9.4, such Securities shall cease from and after the date fixed for redemption to be entitled to any benefit or security under this Indenture (including, but not limited to, conversion rights pursuant to Article Eleven which shall cease at the close of business on the third Business Day prior to the date fixed for redemption or on such earlier day, if any, specified pursuant to Section 2.6 for such Securities), and the Holders of such Securities shall have no right in respect of such Securities except the right to receive the redemption price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such Securities at a place of payment specified in said notice, said Securities or the specified portions thereof shall be paid and redeemed by the Issuer at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; provided, that if the date fixed for redemption is an interest payment date, the - -------- interest due on that date shall be payable to the Holders of such Securities registered as such on the relevant record date according to their terms. If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal thereof so to be redeemed shall, until paid or duly provided for, bear interest from the date fixed for redemption at the Overdue Rate applicable to such series. Upon presentation of any Security redeemed in part only, the Issuer shall execute (in each case with the Guaranty endorsed thereon executed by the Guarantor) and the Trustee shall authenticate and make available for delivery to or on the order of the Holder thereof, at the expense of the Issuer, a new Security or Securities of such series, of authorized denominations, in principal amount equal to the unredeemed portion of the Security so presented. SECTION 10.4 Exclusion of Certain Securities from Eligibility for ---------------------------------------------------- Selection for Redemption. Securities shall be excluded from eligibility for - ------------------------ selection for redemption if they are identified by registration and certificate number or other distinguishing symbol in a written statement signed by an authorized officer of the Issuer and delivered to the Trustee at least 10 days prior to the date on which Securities are to be selected for redemption as being owned of record and beneficially by, and not pledged or hypothecated by, either (a) the Issuer or the Guarantor or (b) an entity specifically identified in such written statement directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or the Guarantor. -65- SECTION 10.5 Mandatory and Optional Sinking Funds. 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". The date on which a sinking fund payment is to be made is herein referred to as the "sinking fund payment date". In lieu of making all or any part of any mandatory sinking fund payment with respect to any series of Securities in cash, the Issuer may at its option (a) deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the mandatory sinking fund) by the Issuer or receive credit for Securities of such series (not previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant to Section 2.14, (b) receive credit for optional sinking fund payments (not previously so credited) made pursuant to this Section, (c) receive credit for Securities of such series (not previously so credited) that have been surrendered to the Issuer for conversion, or (d) receive credit for Securities of such series (not previously so credited) redeemed by the Issuer through any optional redemption provision contained in the terms of Securities of such series. Securities so delivered or credited shall be received or credited by the Trustee at the sinking fund redemption price specified in such Securities, and the amount of such mandatory sinking fund payment shall be reduced accordingly. On or before the sixtieth day next preceding each sinking fund payment date for any series of Securities, the Issuer will deliver to the Trustee a certificate of the Issuer (which need not contain the statements required by the Trust Indenture Act of 1939) signed by an officer of the Issuer who is one of the officers authorized to sign an Officers' Certificate (a) specifying the portion, if any, of the mandatory sinking fund payment to be satisfied by payment of cash and the portion, if any, to be satisfied by credit of Securities of such series, (b) stating that none of such Securities has theretofore been so credited, (c) stating that no Event of Default with respect to such series has occurred (which has not been waived or cured) and is continuing and (d) stating whether or not the Issuer intends to exercise its right to make an optional sinking fund payment with respect to such series and, if so, specifying the amount of such optional sinking fund payment which the Issuer intends to pay on or before the next succeeding sinking fund payment date. Any Securities of such series to be credited and required to be delivered to the Trustee in order for the Issuer to be entitled to credit therefor as aforesaid which have not theretofore been delivered to the Trustee shall be delivered for cancellation pursuant to Section 2.14 to the Trustee with such certificate. Such certificate shall be irrevocable and upon its receipt by the Trustee the Issuer shall become obligated to make all the cash payments or payments therein referred to, if any (which cash may be deposited with the Trustee or with one or more paying agents or, if the Issuer is acting as its own paying agent, segregated and held in trust as required by the Trust Indenture Act of 1939), on or before the next succeeding sinking fund payment date. Failure of the Issuer, on or before any such sixtieth day, to deliver such certificate and Securities specified in this paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election of the Issuer (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of such series in respect thereof and (ii) that the Issuer will make no optional sinking fund payment with respect to such series as provided in this Section. -66- If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund payments made in cash shall exceed U.S.$100,000 or, if payments on Securities of such series are to be made in a currency other than Dollars or in units or composites of two more currencies, the equivalent thereof (based upon the Market Exchange Rate on the sixtieth day preceding the relevant sinking fund payment date or if the Market Exchange Rate is not available for such date, the immediately preceding date for which the Market Exchange Rate is available) in the relevant currency or unit or composite currency (or such other amount as is specified for a particular series of Securities pursuant to Section 2.6), or a lesser sum if the Issuer shall so request, with respect to the Securities of any particular series, such cash shall be applied by the Trustee (or by the Issuer if the Issuer is acting as its own paying agent) on the sinking fund payment date on which such payment is made (or, if such payment is made before a sinking fund payment date, on the next sinking fund payment date following the date of such payment) to the redemption of such Securities at the sinking fund redemption price specified in such Securities for operation of the sinking fund together with accrued interest, if any, to the date fixed for redemption. If such amount shall be U.S.$100,000 or, if payments on Securities of such series are to be made in a currency other than Dollars or in units or composites of two more currencies, the equivalent thereof (based upon the Market Exchange Rate on the sixtieth day preceding the relevant sinking fund payment date or if the Market Exchange Rate is not available for such date, the immediately preceding date for which the Market Exchange Rate is available) in the relevant currency or unit or composite currency (or such other amount as is specified for the particular series pursuant to Section 2.6), or less and the Issuer makes no such request then it shall be carried over until a sum in excess of U.S.$100,000, or the equivalent thereof in the relevant currency or unit or composite currency, is available. The Trustee shall select, in the manner provided in Section 10.2, for redemption on such sinking fund payment date, Securities of such series with respect to which cash payment of the applicable sinking fund redemption price will be made and shall (if requested in writing by the Issuer) inform the Issuer of the serial numbers or other distinguishing symbols of the Securities of such series (or portions thereof) so selected. If the Trustee shall be required to select Securities of any series for the sinking fund and is not acting as repository of the Register for such series, at least 60 days prior to the sinking fund payment date the Issuer shall furnish to the Trustee a current list of all Outstanding Securities of such series. Securities of any series which are (a) owned by the Issuer, the Guarantor or an entity actually known by the Trustee to be directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or the Guarantor, as shown by the Register, and not known to the Trustee to have been pledged or hypothecated by the Issuer, the Guarantor or any such entity or (b) identified in an Officers' Certificate at least 60 days prior to the sinking fund payment date as being beneficially owned by, and not pledged or hypothecated by, the Issuer, the Guarantor or an entity directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or the Guarantor, shall be excluded from Securities of such series eligible for selection for redemption. The Trustee, in the name and at the expense of the Issuer (or the Issuer, if it shall so notify the Trustee in writing) shall cause notice of redemption of the Securities of such series to be given in substantially the manner provided in Section 10.2, except that the notice of redemption shall also state that the Securities are being redeemed by operation of the sinking fund (and with the effect -67- provided in Section 10.3) for the redemption of Securities of such series which, if applicable, is in part at the option of the Issuer. The amount of any sinking fund payments not so applied or allocated by the Trustee (or by the Issuer if the Issuer is acting as its own paying agent) to the redemption of Securities of such series shall be added to the next cash sinking fund payment received by the Trustee (or if the Issuer is acting as its own paying agent, segregated and held in trust as required by the Trust Indenture Act of 1939) for such series and, together with such payment (or such amount so segregated), shall be applied in accordance with the provisions of this Section 10.5. Any and all sinking fund monies held by the Trustee (or if the Issuer is acting as its own paying agent, segregated and held in trust as required by the Trust Indenture Act of 1939) on the stated maturity date of the Securities of any particular series (or earlier, if such maturity is accelerated), which are not held for the payment or redemption of particular Securities of such series shall be applied by the Trustee (or by the Issuer if the Issuer is acting as its own paying agent), together with other monies, if necessary, sufficient for the purpose, to the payment of the principal of, and interest on, the Securities of such series at maturity. On or before each sinking fund payment date, the Issuer shall pay to the Trustee in cash (or if the Issuer is acting as its own paying agent will segregate and hold in trust as required by the Trust Indenture Act of 1939) or shall otherwise provide for the payment of all interest accrued to the date fixed for redemption on Securities (or portions thereof) to be redeemed on such sinking fund payment date. Neither the Issuer nor the Trustee shall redeem or cause to be redeemed any Securities of a series with sinking fund monies or mail any notice of redemption of Securities for such series by operation of the sinking fund during the continuance of a default in payment of interest, if any, on such Securities or of any Event of Default (other than an Event of Default occurring as a consequence of this paragraph, with respect to such Securities) except that, where the mailing of notice of redemption of any Securities shall theretofore have been made, the Trustee (or the Issuer if the Issuer is acting as its own paying agent) shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Issuer (or the Issuer shall have segregated) a sum sufficient for such redemption. Except as aforesaid, any monies in the sinking fund for such series at the time when any such default or Event of Default shall occur, and any monies thereafter paid into the sinking fund, shall, during the continuance of such default or Event of Default, be deemed to have been collected under Article Four and held for the payment of all such Securities. Notwithstanding anything in the foregoing to the contrary, in case such default or Event of Default shall have been waived as provided in Section 4.9 or the default or Event of Default cured on or before the sixtieth day preceding the sinking fund payment date in any year, such monies shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section 10.5 to the redemption of such Securities. SECTION 10.6 Conversion Arrangement on Call for Redemption. If in ---------------------------------------------- connection with any redemption of Securities of any series with respect to which the Holders have the right to convert such Securities into shares of Common Stock, the Holders thereof do not elect to convert such Securities, the Issuer may arrange for the purchase and conversion of such Securities by an agreement with one or more investment banking firms or other purchasers to purchase such -68- Securities by paying to the Trustee in trust for the Holders, not later than the close of business on the third Business Day prior to the date fixed for redemption, an amount not less than the applicable redemption price, together with interest accrued to the date fixed for redemption, of such Securities. Notwithstanding anything to the contrary contained in this Article Ten, the obligation of the Issuer to pay the redemption price of such Securities, together with interest accrued to the date fixed for redemption, shall be deemed to be satisfied and discharged to the extent such amount is so paid by such purchasers to the Trustee in trust for the Holders. If such an agreement is made, any Securities not duly surrendered for conversion by the Holders thereof may, at the option of the Issuer, be deemed, to the fullest extent permitted by law, to have been acquired by such purchasers from such Holders and (notwithstanding anything to the contrary contained in Article Eleven) surrendered by such purchasers for conversion, all as of immediately prior to the close of business on the third Business Day prior to the date fixed for redemption, subject to payment by the purchasers as specified above. The Trustee shall hold and dispose of any such amount paid to it in the same manner as it would monies deposited with it by the Issuer for the redemption of Securities. Without the Trustee's prior written consent, no arrangement between the Issuer and such purchasers for the purchase and conversion of any Securities shall increase or otherwise affect any of the powers, duties, responsibilities or obligations of the Trustee as set forth in this Indenture, and the Issuer agrees to indemnify the Trustee from, and hold it harmless against, any and all loss, liability, claim, damage or expense arising out of or in connection with any such arrangement for the purchase and conversion of any Securities between the Issuer and such purchasers, including the costs and expenses incurred by the Trustee and its counsel in the defense of any claim (whether asserted by the Issuer, the Guarantor, a Holder, or any other Person) or liability arising out of or in connection with the exercise or performance of any of its powers, duties, responsibilities or obligations under this Indenture. ARTICLE ELEVEN CONVERSION OF SECURITIES SECTION 11.1 General. If so provided in the terms of the Securities ------- of any series established in accordance with Section 2.6, the principal amount of the Securities of such series shall be convertible into shares of Common Stock in accordance with this Article Eleven and the terms of such series of Securities if such terms differ from this Article Eleven; provided, however, -------- ------- that if any of the terms by which any such Security shall be convertible into Common Stock are set forth in a supplemental indenture entered into with respect thereto pursuant to Article Seven hereof, the terms of such supplemental indenture shall govern. SECTION 11.2 Right to Convert. Subject to and upon compliance with ---------------- the provisions of this Article, the Holder of any Security that is convertible into Common Stock shall have the right, at such Holder's option, at any time on or after the date of original issue of such Security or such other date specified in the applicable Resolution delivered pursuant to Section 2.6 and prior to the close of business on the date set forth in such Resolution (or if such Security is called for redemption, then in respect of such Security to and including but not after the close of business on the third Business Day prior to the date fixed for redemption or on such earlier day, if any, specified pursuant to Section 2.6 for such Security unless the Issuer shall default in the payment due on such date) to convert the principal amount of any such Security of any authorized -69- denomination or, in the case of any Security to be converted of a denomination greater than the minimum denomination for Securities of the applicable series, any portion of such principal which is an authorized denomination or an integral multiple thereof, into that number of fully paid and nonassessable shares of Common Stock obtained by dividing the principal amount of such Security or portion thereof surrendered for conversion by the Conversion Price therefor by surrender of the Security so to be converted in whole or in part in the manner provided in Section 11.3. Such conversion shall be effected by the Issuer in accordance with the provisions of this Article and the terms of the Securities, if such terms differ from this Article. SECTION 11.3 Manner of Exercise of Conversion Privilege; Delivery of ------------------------------------------------------- Common Stock; No Adjustment for Interest or Dividends. In order to effect a - ----------------------------------------------------- conversion, the holder of any Security to be converted, in whole or in part, shall surrender such Security to the Trustee or conversion agent at the office or agency maintained by the Issuer for such purpose, as provided in Section 3.2 and shall deliver written notice of conversion, which shall be substantially in the Form of Election to Convert as provided for in Section 2.15, to such office or agency. The notice shall be accompanied by payments in respect of transfer taxes, if required pursuant to Section 11.6. Such notice once given, shall be irrevocable and may not be withdrawn. Each Security surrendered for conversion shall, unless the shares of Common Stock deliverable on conversion are to be issued in the same name as the registration of such Security, be duly endorsed by or be accompanied by instruments of transfer, in form satisfactory to the Issuer, duly executed by the Holder or such Holder's duly authorized attorney, and by any payment required pursuant to this Section 11.3. As promptly as practicable after the surrender of such Security and notice, as aforesaid, the Issuer shall deliver or cause to be delivered at such office or agency to such Holder, or on such Holder's written order, a certificate or certificates for the number of full shares of Common Stock deliverable upon the conversion of such Security or portion thereof in accordance with the provisions of this Article and a check or cash in respect of any fractional interest in respect of a share of Common Stock arising upon such conversion as provided in Section 11.4. In case any Security of a denomination greater than the minimum denomination for Securities of the applicable series shall be surrendered for partial conversion, the Issuer shall execute and register and the Trustee shall authenticate and deliver to or upon the written order of the Issuer and the Holder of the Security so surrendered, without charge to such Holder, a new Security or Securities of the same series in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Security. Each conversion shall be deemed to have been effected as of the date on which such Security shall have been surrendered (accompanied by the funds, if any, required by the last paragraph of this Section) and such notice received by the Issuer, as aforesaid, and the person or persons in whose name or names any certificate or certificates for shares of Common Stock shall be registrable upon such conversion shall become on said date the holder of record of the shares represented thereby, provided, however, that any such surrender on any date when -------- ------- the stock transfer books of the Issuer shall be closed shall constitute the person in whose name the certificates are to be registered as the record holder thereof for all purposes on the next succeeding day on which such stock transfer books are open, but such conversion shall be at the Conversion Price in effect on the date upon which such Security shall have been so surrendered. Any Security or portion thereof surrendered for conversion during the period from the close of business on the record date for any interest payment date to the opening of business -70- on such interest payment date shall (unless such Security or portion thereof being converted shall have been called for redemption or submitted for repayment on a date during such period) be accompanied by payment, in legal tender or other funds acceptable to the Issuer, of an amount equal to the interest otherwise payable on such interest payment date on the principal amount being converted; provided, however, that no such payment need be made if there shall -------- ------- exist at the time of conversion a default in the payment of interest on the applicable series of Securities. An amount equal to such payment shall be paid by the Issuer on such interest payment date to the Holder of such Security on such record date; provided, however, that if the Issuer shall default in the payment of interest on such interest payment date, such amount shall be paid to the Person who made such required payment. Except as provided above in this Section, no adjustment shall be made for interest accrued on any Security converted or for dividends on any shares issued upon the conversion of such Security as provided in this Article. SECTION 11.4. Cash Payments in Lieu of Fractional Shares. No ------------------------------------------ fractional shares of Common Stock shall be delivered upon conversion of Securities. If more than one Security shall be surrendered for conversion at one time by the same Holder, the number of full shares of Common Stock which shall be deliverable upon conversion shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof to the extent permitted hereby) so surrendered. Instead of any fraction of a share of Common Stock which would otherwise be deliverable upon the conversion of any Security, the Issuer shall pay to the Holder of such Security an amount in cash (computed to the nearest cent, with one-half cent being rounded upward) equal to the same fraction of the closing price (determined in the manner provided in Section 11.5(a)(v)) of the Common Stock on the Trading Day (as defined in Section 11.5(a)(v)) next preceding the date of conversion. SECTION 11.5. Conversion Price Adjustments; Effect of --------------------------------------- Reclassification, Mergers, Consolidations and Sales of Assets. (a) The - ------------------------------------------------------------- Conversion Price shall be adjusted from time to time as follows: (i) In case the Issuer shall (x) pay a dividend or make a distribution on the Common Stock in shares of Common Stock, (y) subdivide the outstanding Common Stock into a greater number of shares or (z) combine the outstanding Common Stock into a smaller number of shares, the Conversion Price shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock of the Issuer which such Holder would have owned or have been entitled to receive after the happening of any of the events described above had such Security been converted immediately prior to the record date in the case of a dividend or the effective date in the case of subdivision or combination. An adjustment made pursuant to this subparagraph (i) shall become effective immediately after the record date in the case of a dividend, except as provided in subparagraph (vii) below, and shall become effective immediately after the effective date in the case of a subdivision or combination. (ii) In case the Issuer shall issue rights or warrants to all holders of shares of Common Stock entitling them (for a period expiring within 45 days after the record date mentioned below) to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share of Common Stock (as defined for -71- purposes of this subparagraph (ii) in subparagraph (v) below), the Conversion Price in effect after the record date for the determination of stockholders entitled to receive such rights or warrants shall be determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so offered would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on the record date for issuance of such rights or warrants plus the number of additional shares of Common Stock receivable upon exercise of such rights or warrants. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately, except as provided in subparagraph (vii) below, after such record date. (iii) In case the Issuer shall distribute to all holders of Common Stock any shares of capital stock of the Issuer (other than Common Stock) or evidences of its indebtedness or assets (excluding cash dividends or distributions paid from retained earnings of the Issuer or dividends payable in Common Stock) or rights or warrants to subscribe for or purchase any of its securities (excluding those rights or warrants referred to in subparagraph (ii) above) (any of the foregoing being hereinafter in this subparagraph (iii) called the "Assets"), then, in each such case, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the record date for determination of stockholders entitled to receive such distribution by a fraction the numerator of which shall be the current market price per share (as defined for purposes of this subparagraph (iii) in subparagraph (v) below) of the Common Stock at such record date for determination of stockholders entitled to receive such distribution less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive) of the portion of the Assets so distributed applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subparagraph (v) below) of the Common Stock at such record date. Such adjustment shall become effective immediately, except as provided in subparagraph (vii) below, after the record date for the determination of stockholders entitled to receive such distribution. (iv) If, pursuant to subparagraph (ii) or (iii) above, the number of shares of Common Stock into which a Security is convertible shall have been adjusted because the Issuer has declared a dividend, or made a distribution, on the outstanding shares of Common Stock in the form of any right or warrant to purchase securities of the Issuer, or the Issuer has issued any such right or warrant, then, upon the expiration of any such unexercised right or unexercised warrant, the Conversion Price shall forthwith be adjusted to equal the Conversion Price that would have applied had such right or warrant never been declared, distributed or issued. (v) For the purpose of any computation under subparagraphs (ii) or (iii) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices of the Common Stock for the shorter of (i) 30 -72- consecutive Trading Days ending on the last full Trading Day on the exchange or market specified in the second following sentence prior to the Time of Determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or warrants or such distribution through such last full Trading Day prior to the Time of Determination. The term "Time of Determination" as used herein shall be the time and date of the earlier of (x) the determination of stockholders entitled to receive such rights, warrants or distributions or (y) the commencement of "ex-dividend" trading in the Common Stock on the exchange or market specified in the following sentence. The closing price for each day shall be the reported last sales price, regular way, or, in case no sale takes place on such day, the average of the reported closing bid and asked prices, regular way, in either case as reported on the New York Stock Exchange Composite Tape or, if the Common Stock is not listed or admitted to trading on the New York Stock Exchange at such time, on the principal national securities exchange on which the Common Stock is listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the Nasdaq National Market ("NNM") or, if the last sales price or closing bid and asked prices for the Common Stock on each such day shall not have been reported through NNM, the average of the bid and asked prices for such date as furnished by any New York Stock Exchange member firm regularly making a market in the Common Stock selected for such purpose by the Issuer or, if no such quotations are available, the fair market value of the Common Stock as determined by a New York Stock Exchange member firm regularly making a market in the Common Stock selected for such purpose by the Issuer. As used herein, the term "Trading Day" with respect to Common Stock means (x) if the Common Stock is listed or admitted for trading on the New York Stock Exchange or another national securities exchange, a day on which the New York Stock Exchange or such other national securities exchange, as the case may be, is open for business or (y) if the Common Stock is quoted on NNM, a day on which trades may be made on NNM or (z) otherwise, any day other than a Saturday or Sunday or a day on which banking institutions in the State of New York are authorized or obligated by law or executive order to close. (vi) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in such price; provided, however, that any adjustments which by reason of this -------- ------- subparagraph (vi) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 11.5(a) shall be made to the nearest cent or to the nearest .01 of a share, as the case may be, with one-half cent and .005 of a share, respectively, being rounded upward. Anything in this Section 11.5(a) to the contrary notwithstanding, the Issuer shall be entitled to make such reductions in the Conversion Price, in addition to those required by this Section 11.5(a), as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights or warrants to purchase stock or securities, or distribution of other assets (other than cash dividends) hereafter made by the Issuer to its stockholders shall not be taxable. (vii) In any case in which this Section 11.5(a) provides that an adjustment shall -73- become effective immediately after a record date for an event, the Issuer may defer until the occurrence of such event (x) issuing to the Holder of any Security converted after such record date and before the occurrence of such event the additional shares of Common Stock issuable upon such conversion by reason of the adjustment required by such event over and above the Common Stock issuable upon such conversion before giving effect to such adjustment and (y) paying to such holder any amount of cash in lieu of any fractional share of Common Stock pursuant to Section 11.4. (viii) Whenever the Conversion Price is adjusted as herein provided, the Issuer shall file with the Trustee an Officers' Certificate, setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment; provided, however, that the failure of the Issuer to file such Officers' Certificate shall not affect the legality or validity of any corporate action by the Issuer. (ix) Whenever the Conversion Price for any series of Securities is adjusted as provided in this Section 11.5(a), the Issuer shall cause to be mailed to each Holder of Securities of such series at its then registered address by first-class mail, postage prepaid, a notice of such adjustment of the Conversion Price setting forth such adjusted Conversion Price and the effective date of such adjusted Conversion Price; provided, however, that the failure of the Issuer to give such notice shall not affect the legality or validity of any corporate action by the Issuer. (b) (i) Notwithstanding any other provision herein to the contrary, if any of the following events occur, namely (x) any reclassification or change of outstanding shares of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination of the Common Stock), (y) any consolidation, merger or combination of the Issuer with or into another entity as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, or (z) any sale or conveyance of all or substantially all of the assets of the Issuer to any other entity as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, then appropriate provision shall be made by supplemental indenture so that (A) the Holder of any outstanding Security that is convertible into Common Stock shall have the right to convert such Security into the kind and amount of the shares of stock and securities or other property or assets (including cash) that would have been receivable upon such reclassification, change, consolidation, merger, combination, sale, or conveyance by a holder of the number of shares of Common Stock issuable upon conversion of such Security immediately prior to such reclassification, change, consolidation, merger, combination, sale or conveyance and (B) the number of shares of any such other stock or securities into which such Security shall thereafter be convertible shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the terms of adjustment provided for in this Section, and Sections 11.2, 11.3, 11.4, 11.6, 11.7, 11.8 and 11.9 shall apply on like terms to any such other stock or securities. -74- (ii) In case of any reclassification or change of the Common Stock (other than a subdivision or combination of its outstanding Common Stock, or a change in par value, or from par value to no par value, or from no par value to par value), or of any consolidation, merger or combination of the Issuer with or into another corporation or of the sale or conveyance of all or substantially all of the assets of the Issuer, the Issuer shall cause to be filed with the Trustee and to be mailed to each Holder of Securities that are convertible into shares of Common Stock at such Holder's registered address, the date on which such reclassification, change, consolidation, merger, combination, sale or conveyance is expected to become effective, and the date as of which it is expected that holders of Common Stock shall be entitled to exchange their Common Stock for stock, securities or other property deliverable upon such reclassification, change, consolidation, merger, combination, sale or conveyance. SECTION 11.6. Taxes on Shares Issued. The delivery of stock ---------------------- certificates upon conversion of Securities shall be made without charge to the Holder converting a Security for any tax in respect of the issue thereof. The Issuer shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the delivery of stock registered in any name other than of the Holder of any Security converted, and the Issuer shall not be required to deliver any such stock certificate unless and until the person or persons requesting the delivery thereof shall have paid to the Issuer the amount of such tax or shall have established to the satisfaction of the Issuer that such tax has been paid. SECTION 11.7. Shares to be Fully Paid; Compliance with Governmental ----------------------------------------------------- Requirements; Listing of Common Stock. The Issuer covenants that all shares of - ------------------------------------- Common Stock which may be delivered upon conversion of Securities of any series which are convertible into Common Stock will upon delivery be fully paid and nonassessable by the Issuer and free from all taxes, liens and charges with respect to the issue thereof. The Issuer covenants that if any shares of Common Stock to be provided for the purpose of conversion of Securities hereunder require registration with or approval of any governmental authority under any Federal or state law before such shares may be validly delivered upon conversion, the Issuer will in good faith and as expeditiously as possible endeavor to secure such registration or approval, as the case may be. The Issuer further covenants that it will, if permitted by the rules of the New York Stock Exchange, or such other national stock exchange on which the Common Stock is listed or admitted to trading or if permitted by the rules of Nasdaq if the Common Stock is approved by it for listing or quotation, list and keep listed for so long as the Common Stock shall be so listed on such exchange or Nasdaq, upon official notice of issuance, all Common Stock deliverable upon conversion of Securities of any series which are convertible into Common Stock. SECTION 11.8. Responsibility of Trustee. Neither the Trustee nor any ------------------------- conversion agent shall at any time be under any duty or responsibility to any Holder of Securities to determine whether any facts exist which may require any adjustment of the Conversion Price applicable to such Securities, or with respect to the nature or extent of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture pro- -75- vided to be employed, in making the same, or whether any such supplemental indenture need be entered into. Neither the Trustee nor any conversion agent shall be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities or property, which may at any time be delivered upon the conversion of any Security; and neither the Trustee nor any conversion agent makes any representation with respect thereto. Neither the Trustee nor any conversion agent shall be responsible for any failure of the Issuer to deliver any shares of Common Stock or stock certificates or other securities or property or cash upon the surrender of any Security for the purpose of conversion or for any failure of the Issuer to comply with any of the covenants of the Issuer contained in this Article Eleven. SECTION 11.9. Covenant to Reserve Shares. The Issuer covenants that -------------------------- it will at all times reserve and keep available, free from pre-emptive rights, out of its authorized but unissued Common Stock, such number of shares of Common Stock as shall then be deliverable upon the conversion of all Outstanding Securities of any series of Securities which are convertible into Common Stock. SECTION 11.10. Other Conversions. If so provided in a Resolution ----------------- with respect to the Securities of a series, the principal amount of the Securities of such series may be convertible into or exchangeable for other securities of the Issuer (which other securities may be issued under this Indenture or otherwise) or convertible into or exchangeable for securities of another Person, and the issuance of such securities upon any such conversion or exchange shall be made in accordance with the terms of such Resolution. ARTICLE TWELVE GUARANTY OF SECURITIES SECTION 12.1 Guaranty (a) The Guarantor hereby irrevocably and -------- unconditionally guarantees as hereinafter provided to each Holder of a Security of any series authenticated and delivered by the Trustee, and to the Trustee, the due and punctual payment of the principal of, premium, if any, and interest, if any, on such Security, when and as the same shall become due and payable, subject to any applicable grace period, whether on the date of maturity, by acceleration or upon redemption pursuant to Article Ten or otherwise, according to the terms of such Security and this Indenture. (b) The Guarantor hereby agrees that its obligations hereunder shall be as principal obligor and not merely as surety, and shall be unconditional, irrevocable and absolute, irrespective of the validity, regularity or enforceability of the Securities of any series or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities of any series with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. -76- (c) The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice with respect to the Security on which this Guaranty is endorsed or the indebtedness evidenced thereby, and all demands whatsoever and covenants that the Guaranty not be discharged except by complete performance of the obligations of the Guarantor contained in the Securities and this Indenture. If any Securityholder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantor, any custodian, liquidator, trustee or other similar official acting in relation to the Issuer or the Guarantor, any amount paid by the Issuer or the Guarantor to the Trustee or such Securityholder, the Guaranty to the extent theretofore discharged, shall be reinstated in full force and effect. (d) 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 Guaranty. (e) 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 Issuer. SECTION 12.2 Representation and Warranty. The Guarantor hereby --------------------------- represents and warrants that all acts, conditions and things required to be done and performed and to have happened precedent to the creation and issuance of the Guaranty and the Indemnity, and to constitute the same legal, valid and binding obligations of the Guarantor enforceable in accordance with their respective terms, have been done and performed and have happened in compliance with all applicable laws. SECTION 12.3 Subrogation. The Guarantor will be subrogated to all ----------- rights of Holders of Securities of any series on which the Guaranty is endorsed against the Issuer in respect of any amount paid by the Guarantor pursuant to the Guaranty with respect to Securities of such series; provided, however, that -------- ------- the Guarantor shall not, without the consent of the Holders of all of the Securities of such series, be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of and premium, if any, and interest, if any, on all of the Securities of such series shall be paid in full or payment thereof shall have been provided for in accordance with this Indenture. ARTICLE THIRTEEN MISCELLANEOUS PROVISIONS ------------------------ SECTION 13.1 Incorporators, Stockholders, Officers and Directors of ------------------------------------------------------ Issuer Exempt from Individual Liability. No recourse under or upon any - --------------------------------------- obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced -77- thereby, shall be had against any incorporator, as such or against any past, present or future stockholder, officer or director, as such, of the Issuer or the Guarantor or of any successor, either directly or through the Issuer, the Guarantor or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of the Securities. SECTION 13.2 Provisions of Indenture for the Sole Benefit of Parties ------------------------------------------------------- and Securityholders. Nothing in this Indenture or in the Securities, expressed - ------------------- or implied, shall give or be construed to give to any Person, other than the parties hereto and their successors and assigns and the Holders of the Securities, any legal or equitable right, remedy or claim under this Indenture or under any covenant, condition or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders of the Securities. SECTION 13.3 Successors and Assigns of Issuer and Guarantor Bound by ------------------------------------------------------- Indenture. All the covenants, stipulations, promises and agreements in this - --------- Indenture contained by the Issuer and the Guarantor shall bind each of their successors and assigns, whether or not so expressed. SECTION 13.4 Notices and Demands on Issuer, Guarantor, Trustee and ----------------------------------------------------- Securityholders. Any notice or demand which by any provision of this Indenture - --------------- is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Issuer may be given or served by being deposited postage prepaid, first-class mail, in a post office letter box (except as otherwise specifically provided herein) addressed (until another address of the Issuer is furnished by the Issuer to the Trustee) to Newmont Mining Corporation, 1700 Lincoln Street, Denver, Colorado 80203, Attention: Treasurer. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Guarantor may be given or served by being deposited postage prepaid, first-class mail, in a post office letter box (except as otherwise specifically provided herein) addressed (until another address of the Guarantor is furnished by the Guarantor to the Trustee) to Newmont Gold Company, 1700 Lincoln Street, Denver, Colorado 80203, Attention: Treasurer. Any notice, direction, request or demand by the Issuer, the Guarantor or any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing and received at its Corporate Trust Office. Where this Indenture provides for notice to Securityholders, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Securityholder entitled thereto, at his last address as it appears in the Register. In any case where notice to Securityholders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Securityholder shall affect the sufficiency of such notice with respect to other Securityholders. 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 Securityholders shall be filed with the Trustee, but such filing -78- shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. Notwithstanding anything to the contrary elsewhere in this Indenture as to the giving of notice, any other form of written notice is sufficient, if received. In case, by reason of the suspension of or irregularities in regular mail service, it shall be impracticable to mail notice to the Issuer, the Guarantor or Securityholders when such notice is required to be given pursuant to any provision of this Indenture, then notwithstanding anything to the contrary elsewhere in this Indenture as to the giving of notice, any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice. SECTION 13.5 Officers' Certificates and Opinions of Counsel; ----------------------------------------------- Statements to Be Contained Therein. Upon any application or demand by the - ---------------------------------- Issuer or the Guarantor to the Trustee to take any action under any of the provisions of this Indenture, the Issuer 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 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 have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished. Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (a) a statement that the Person making such certificate or opinion has read such covenant or condition, (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based, (c) a statement that, in the opinion of such Person, he 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 (d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with. Any certificate, statement or opinion of an officer of the Issuer 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 officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates to factual matters or information which is in the possession of the Issuer or the Guarantor, upon the certificate, statement or opinion of or representations by an officer or officers of the Issuer or the Guarantor, unless such counsel knows that the certificate, statement or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous. Any certificate, statement or opinion of an officer of the Issuer or the Guarantor or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Issuer or the -79- Guarantor, unless such officer or counsel, as the case may be, knows that the certificate or opinion or representations with respect to the accounting matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous. Any certificate or opinion of any independent firm of public accountants filed with the Trustee shall contain a statement that such firm is independent. SECTION 13.6 Official Acts by Successor Entity. Any act or proceeding --------------------------------- by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Issuer or the Guarantor shall and may be done and performed with like force and effect by the like board, committee or officer of any entity that shall at the time be the lawful sole successor of the Issuer or the Guarantor, as the case may be. SECTION 13.7 Payments Due on Saturdays, Sundays and Legal Holidays. ----------------------------------------------------- Except as may be provided pursuant to Section 2.6 with respect to any series of Tranche, if the date of maturity of interest on or principal of the Securities of any series or the date fixed for redemption or repayment of any such Security shall not be a Business Day, then payment of such interest, if any, or principal need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption or repayment, and no interest shall accrue for the period from and after such date. SECTION 13.8 NEW YORK LAW TO GOVERN. THIS INDENTURE, INCLUDING THE ---------------------- GUARANTY, AND EACH SECURITY AND THE ENDORSEMENT OF THE GUARANTY THEREON SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE. SECTION 13.9 Counterparts. This Indenture may be executed in any ------------ number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. SECTION 13.10 Effect of Headings. The Article and Section headings ------------------ herein and the Table of Contents are for convenience of reference only, are not to be considered a part hereof and shall not affect the construction hereof. SECTION 13.11 Conflict with Trust Indenture Act. If any provision --------------------------------- hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act of 1939 that is required under such Act to be a part of and govern this Indenture, the latter provisions shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act of 1939 that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be. -80- IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of __________ __, 199_. NEWMONT MINING CORPORATION, as Issuer By__________________________ Name: Title: NEWMONT GOLD COMPANY, as Guarantor By__________________________ Name: Title: CITIBANK, N.A., as Trustee By__________________________ Name: Title: -81- EX-4.5 4 INDENTURE RELATED TO SUBORDINATED DEBT SECURITIES EXHIBIT 4.5 NEWMONT MINING CORPORATION, as Issuer NEWMONT GOLD COMPANY, as Guarantor AND CITIBANK, N.A., as Trustee INDENTURE Dated as of [______, ____] _____________________ GUARANTEED SUBORDINATED DEBT SECURITIES NEWMONT MINING CORPORATION, as Issuer NEWMONT GOLD COMPANY, as Guarantor AND CITIBANK, N.A., as Trustee TRUSTEE INDENTURE Dated as of [______, ____] ____________ Reference is made to the following provisions of the Trust Indenture Act of 1939, as amended, which establish certain duties and responsibilities of the Issuer and the Trustee which are not set forth in this Indenture: Section Subject Section Section - ------- ------- ------- ------- 310(b) Disqualification of Trustee for 315(c) Duties of claims conflicting Securityholders Trustee in case of default 311 Preferential collection of Trustee 315(d) Provisions relating as creditor of Issuer to responsibility of Trustee 312(a) Periodic filing of information by 315(e) Assessment of costs Issuer with Trustee against litigating Securityholders in cer- tain circumstances 312(b) Access of Securityholders to 316(a) Directions to and information waiver by scurityhol- ders in certain circumstances 313(b) Additional reports of Trustee to 316(b) Prohibition or impair- Securityholders ment of right of Securityholders to payment 314(c) Evidence of compliance with 316(c) Right of Issuer to conditions precedent set record for certain purposes 315(a) Duties of Trustee prior to default 317(a) Special Powers of Trustee 315(b) Notice of default from Trustee to 318(a) Provisions of Act to Securityholders control in case of conflict TABLE OF CONTENTS -----------------
Page ---- ARTICLE ONE DEFINITIONS............................................................................................ 1 SECTION 1.1 Certain Terms Defined.................................................................... 1 ARTICLE TWO SECURITIES ............................................................................................ 8 SECTION 2.1 Forms Generally.......................................................................... 8 SECTION 2.2 Form of Face of Security................................................................. 8 SECTION 2.3 Form of Reverse of Security.............................................................. 11 SECTION 2.4 Form of Notation on Security Relating to Guaranty........................................ 15 SECTION 2.5 Form of Trustee's Certificate of Authentication.......................................... 17 SECTION 2.6 Amount Unlimited; Issuable in Series..................................................... 17 SECTION 2.7 Authentication and Delivery of Securities................................................ 19 SECTION 2.8 Execution of Securities.................................................................. 21 SECTION 2.9 Certificate of Authentication............................................................ 22 SECTION 2.10 Execution and Delivery of Guaranty....................................................... 22 SECTION 2.11 Denomination and Date of Securities; Payments of Interest................................ 22 SECTION 2.12 Registration, Transfer and Exchange...................................................... 23 SECTION 2.13 Mutilated, Defaced, Destroyed, Lost and Stolen Securities................................ 25 SECTION 2.14 Cancellation of Securities Paid, etc..................................................... 26 SECTION 2.15 Temporary Securities..................................................................... 27 SECTION 2.16 CUSIP Numbers............................................................................ 27 SECTION 2.17 Form of Election to Convert.............................................................. 27 ARTICLE THREE COVENANTS OF THE ISSUER AND THE GUARANTOR.............................................................. 29 SECTION 3.1 Payment of Principal and Interest........................................................ 29 SECTION 3.2 Offices for Payments, etc................................................................ 29 SECTION 3.3 Paying Agents............................................................................ 29 SECTION 3.4 Notice of Default........................................................................ 30 SECTION 3.5 Calculation of Original Issue Discount................................................... 30 SECTION 3.6 Reports.................................................................................. 31 SECTION 3.7 Compliance Certificates.................................................................. 31
(i)
Page ---- ARTICLE FOUR REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT ................................................................... 31 SECTION 4.1 Events of Default......................................................................... 31 SECTION 4.2 Payment of Securities on Default; Suit Therefor........................................... 34 SECTION 4.3 Application of Moneys Collected by Trustee................................................ 36 SECTION 4.4 Proceedings by Trustee.................................................................... 37 SECTION 4.5 Restoration of Rights on Abandonment of Proceedings....................................... 37 SECTION 4.6 Proceedings by Securityholders............................................................ 37 SECTION 4.7 Remedies Cumulative and Continuing........................................................ 38 SECTION 4.8 Control by Securityholders................................................................ 38 SECTION 4.9 Waiver of Past Defaults................................................................... 38 ARTICLE FIVE CONCERNING THE TRUSTEE................................................................................. 39 SECTION 5.1 Reliance on Documents, Opinions, etc.; No Requirement for Expenditure of Own Funds................................................................. 39 SECTION 5.2 No Responsibility for Recitals, etc....................................................... 40 SECTION 5.3 Trustee and Agents May Hold Securities.................................................... 40 SECTION 5.4 Moneys to Be Held in Trust................................................................ 41 SECTION 5.5 Compensation and Expenses of Trustee...................................................... 41 SECTION 5.6 Right of Trustee to Rely on Officers' Certificate, etc.................................... 42 SECTION 5.7 Eligibility of Trustee.................................................................... 42 SECTION 5.8 Resignation or Removal of Trustee; Appointment of Successor Trustee....................... 42 SECTION 5.9 Acceptance of Appointment by Successor Trustee............................................ 43 SECTION 5.10 Merger, Conversion, Consolidation or Succession to Business of Trustee.................... 44 SECTION 5.11 Reports by Trustee to Securityholders..................................................... 45 ARTICLE SIX CONCERNING THE SECURITYHOLDERS......................................................................... 45 SECTION 6.1 Action by Securityholders................................................................. 45 SECTION 6.2 Proof of Execution by Securityholders..................................................... 46 SECTION 6.3 Holders to Be Treated as Owners........................................................... 46 SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding......................................... 47 SECTION 6.5 Right of Revocation of Action Taken....................................................... 47 SECTION 6.6 Securityholders' Meetings; Purposes....................................................... 48 SECTION 6.7 Call of Meetings by Trustee............................................................... 48 SECTION 6.8 Call of Meetings by Issuer or Securityholders............................................. 48 SECTION 6.9 Qualifications for Voting................................................................. 49
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Page ---- SECTION 6.10 Quorum; Adjourned Meetings................................................................ 49 SECTION 6.11 Regulations............................................................................... 49 SECTION 6.12 Voting.................................................................................... 50 SECTION 6.13 No Delay of Rights by Meeting............................................................. 51 SECTION 6.14 Written Consent in Lieu of Meeting........................................................ 51 ARTICLE SEVEN SUPPLEMENTAL INDENTURES................................................................................ 51 SECTION 7.1 Supplemental Indentures Without Consent of Securityholders................................ 51 SECTION 7.2 Supplemental Indentures With Consent of Securityholders................................... 53 SECTION 7.3 Effect of Supplemental Indenture.......................................................... 54 SECTION 7.4 Certain Documents to Be Given to Trustee.................................................. 54 SECTION 7.5 Notation on Securities.................................................................... 54 ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE...................................................... 54 SECTION 8.1 Issuer and Guarantor May Consolidate, etc., on Certain Terms.............................. 54 SECTION 8.2 Successor Entity to Be Substituted........................................................ 55 SECTION 8.3 Opinion of Counsel and Officers' Certificate to Be Given to Trustee....................... 56 ARTICLE NINE SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS......................................................................... 57 SECTION 9.1 Satisfaction and Discharge of Indenture................................................... 57 SECTION 9.2 Application by Trustee of Funds Deposited for Payment of Securities....................... 57 SECTION 9.3 Repayment of Moneys Held by Paying Agent.................................................. 58 SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years................. 58 SECTION 9.5 Option to Effect Defeasance............................................................... 58 SECTION 9.6 Defeasance and Discharge.................................................................. 58 SECTION 9.7 Conditions to Defeasance.................................................................. 59 SECTION 9.8 Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions................................................................. 60 ARTICLE TEN REDEMPTION OF SECURITIES AND SINKING FUNDS............................................................. 61 SECTION 10.1 Applicability of Article.................................................................. 61 SECTION 10.2 Notice of Redemption; Selection of Securities............................................. 61 SECTION 10.3 Payment of Securities Called for Redemption............................................... 62
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Page ---- SECTION 10.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption.............................................................................. 63 SECTION 10.5 Mandatory and Optional Sinking Funds..................................................... 63 SECTION 10.6 Conversion Arrangement on Call for Redemption............................................ 66 ARTICLE ELEVEN SUBORDINATION OF SECURITIES............................................................................ 67 SECTION 11.1 Agreement that Securities Subordinated to Extent Provided................................ 67 SECTION 11.2 Liquidation, Dissolution, Bankruptcy..................................................... 67 SECTION 11.3 Default on Issuer Senior Indebtedness; Subrogation....................................... 67 SECTION 11.4 Obligation of the Issuer Unconditional................................................... 68 SECTION 11.5 No Fiduciary Duty to Holders of Issuer Senior Indebtedness............................... 69 SECTION 11.6 Notice to Trustee and Paying Agent of Facts Prohibiting Payments......................... 69 SECTION 11.7 Application by Trustee of Moneys......................................................... 69 SECTION 11.8 Subordination Rights Not Impaired By Acts or Omissions of Issuer or Holders of Issuer Senior Indebtedness................................................... 69 SECTION 11.9 Authorization of Trustee to Effectuate Subordination of Securities....................... 70 SECTION 11.10 Certain Issuances Deemed Payment......................................................... 70 ARTICLE TWELVE CONVERSION OF SECURITIES............................................................................... 71 SECTION 12.1 General.................................................................................. 71 SECTION 12.2 Right to Convert......................................................................... 71 SECTION 12.3 Manner of Exercise of Conversion Privilege; Delivery of Common Stock; No Adjustment for Interest or Dividends................................................. 71 SECTION 12.4 Cash Payments in Lieu of Fractional Shares............................................... 73 SECTION 12.5 Conversion Price Adjustments; Effect of Reclassification, Mergers, Consolidations and Sales of Assets....................................................... 73 SECTION 12.6 Taxes on Shares Issued................................................................... 77 SECTION 12.7 Shares to be Fully Paid; Compliance with Governmental Requirements; Listing of Common Stock................................................................. 77 SECTION 12.8 Responsibility of Trustee................................................................ 77 SECTION 12.9 Covenant to Reserve Shares............................................................... 78 SECTION 12.10 Other Conversions........................................................................ 78 ARTICLE THIRTEEN GUARANTY OF SECURITIES................................................................................. 78 SECTION 13.1 Guaranty.................................................................................. 78 SECTION 13.2 Representation and Warranty............................................................... 79 SECTION 13.3 Subrogation............................................................................... 79 SECTION 13.4 Guaranty Subordinate to Guarantor Senior Indebtedness..................................... 79
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Page ---- SECTION 13.5 Payment Over of Proceeds Upon Dissolution, etc........................................... 79 SECTION 13.6 Default on Guarantor Senior Indebtedness; Subrogation.................................... 80 SECTION 13.7 Payment Permitted if No Dissolution, Bankruptcy or Liquidation........................... 81 SECTION 13.8 Subrogation to Rights of Holders of Guarantor Senior Indebtedness........................ 81 SECTION 13.9 Provisions Solely to Define Relative Rights.............................................. 82 SECTION 13.10 Trustee to Effectuate Subordination...................................................... 82 SECTION 13.11 No Waiver of Subordination Provisions.................................................... 82 SECTION 13.12 Notice to Trustee........................................................................ 83 SECTION 13.13 Reliance on Judicial Order or Certificate of Liquidating Agent........................... 83 SECTION 13.14 Rights of Trustee as a Holder of Guarantor Senior Indebtedness; Preservation of Trustee's Rights..................................................................... 83 SECTION 13.15 Not to Prevent Events of Default......................................................... 84 SECTION 13.16 Certain Issuance Deemed Payment.......................................................... 84 SECTION 13.17 Trustee Not Fiduciary for Holders of Guarantor Senior Indebtedness....................... 84 ARTICLE FOURTEEN MISCELLANEOUS PROVISIONS............................................................................... 84 SECTION 14.1 Incorporators, Stockholders, Officers and Directors of Issuer Exempt from Individual Liability............................................................... 84 SECTION 14.2 Provisions of Indenture for the Sole Benefit of Parties and Securityholders.............. 85 SECTION 14.3 Successors and Assigns of Issuer and Guarantor Bound by Indenture........................ 85 SECTION 14.4 Notices and Demands on Issuer, Guarantor, Trustee and Securityholders.................... 85 SECTION 14.5 Officers' Certificates and Opinions of Counsel; Statements to Be Contained Therein....... 86 SECTION 14.6 Official Acts by Successor Entity........................................................ 87 SECTION 14.7 Payments Due on Saturdays, Sundays and Legal Holidays.................................... 87 SECTION 14.8 NEW YORK LAW TO GOVERN................................................................... 87 SECTION 14.9 Counterparts............................................................................. 87 SECTION 14.10 Effect of Headings....................................................................... 87 SECTION 14.11 Conflict with Trust Indenture Act........................................................ 87
(v) THIS INDENTURE, dated as of ______, ____ among NEWMONT MINING CORPORATION, a Delaware corporation (the "Issuer"), NEWMONT GOLD COMPANY, a Delaware corporation (the "Guarantor"), and CITIBANK, N.A., a national banking association duly incorporated and existing under the laws of the United States of America (the "Trustee"). W I T N E S S E T H : - - - - - - - - - - WHEREAS, the Issuer has duly authorized the issuance from time to time of its unsecured, subordinated bonds, debentures, notes and other evidences of indebtedness to be issued in one or more series (the "Securities") up to such principal amount or amounts and denominated in United States dollars or foreign currency or units or composites of two or more thereof as may from time to time be authorized in accordance with the terms of this Indenture and to provide, among other things, for the authentication, delivery and administration thereof, the Issuer has duly authorized the execution and delivery of this Indenture; and WHEREAS, the Guarantor has duly authorized the execution and delivery of this Indenture and deems it appropriate from time to time to issue its guaranty on a subordinated basis of the Securities on the terms herein provided; and WHEREAS, all things necessary to make this Indenture, when executed and delivered by the parties hereto, a valid indenture and agreement according to its terms, have been done; NOW, THEREFORE: In consideration of the premises and the purchases of the Securities by the Holders thereof, the Issuer, the Guarantor and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective Holders from time to time of the Securities as follows: ARTICLE ONE DEFINITIONS ----------- SECTION 1.1 Certain Terms Defined. The following terms (except as --------------------- herein otherwise expressly provided or unless the context otherwise clearly requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section. All other terms used in this Indenture that are defined in the Trust Indenture Act of 1939, as amended to the date of this Indenture as originally executed, or the definitions of which in the Securities Act of 1933, as amended to the date of this Indenture as originally executed, are referred to in the Trust Indenture Act of 1939 (except as herein otherwise expressly provided or unless the context otherwise clearly requires), shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of this Indenture. 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. The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular. "Board of Directors" means (1) with respect to the Issuer either the ------------------ Board of Directors of the Issuer 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. "Assets" has the meaning set forth in Section 12.5. ------ "Blockage Notice" has the meaning set forth in Section 11.3. --------------- "Business Day" means, except as otherwise provided pursuant to Section ------------ 2.5 for Securities of any series, any day that is not a Saturday or Sunday and that is not a day on which banking institutions are generally authorized or obligated by law to close in The City of New York. "Commission" means the Securities and Exchange Commission, as from ---------- time to time constituted, created under the Exchange Act, or if at any time after the execution and delivery of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act of 1939, then the body performing such duties on such date. "Common Stock" means the common stock of the Issuer, par value $1.60 ------------ per share. "Consolidated Net Tangible Assets" means the aggregate amount of -------------------------------- assets (less applicable reserves and other properly deductible items) after deducting therefrom (a) all current liabilities (excluding any thereof which are by their terms extendible or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed and excluding current maturities of long-term indebtedness and capital lease obligations) and (b) all goodwill, all as shown in the most recent consolidated balance sheet of the Issuer and its Subsidiaries computed in accordance with generally accepted accounting principles. "Conversion Price" means, with respect to any series of Securities ---------------- which are convertible into Common stock, the price per share of Common Stock at which the Securities of such series are so convertible as set forth in the Resolution with respect to such series (or in any supplemental indenture entered into pursuant to Article Seven with respect to such series), as the same may be adjusted from time to time in accordance with Section 12.5 (or such supplemental indenture pursuant to Section 12.1). "Corporate Trust Office" means the principal office of the Trustee at ---------------------- which at any time its corporate trust business shall be administered, which office at the date hereof is located at 111 Wall Street, 5/th/ Floor, New York, New York 10005, Attention: Global Agency & Trust Services, or such other address as the Trustee may designate from time to time by notice to the Holders and the Issuer, or the principal corporate trust office of any successor Trustee (or such other address as a successor Trustee may designate from time to time by notice to the Holders and the Issuer). -2- "defeasance" has the meaning set forth in Section 9.6. ---------- "Depositary" means, with respect to the Securities of any series or ---------- Tranche issuable or issued in the form of one or more Global Securities, the Person designated as Depositary for such Global Securities by the Issuer pursuant to Section 2.6 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Depositary" shall mean or include each Person who is then a Depositary for such Global Securities, and if at any time there is more than one Person designated as Depositary for Global Securities of a particular series or Tranche, "Depositary", as used with respect to the Securities of such series or Tranche, means the Depositary with respect to the particular Global Security or Securities. "Dollar or U.S.$" means the coin or currency of the United States of --------------- America as at the time of payment is legal tender for the payment of public and private debts. "euro" means the currency introduced on January 1, 1999 at the start ---- of the third stage of economic and monetary union pursuant to the treaty establishing the European Community. "Event of Default" means any event or condition specified as such in ---------------- Section 4.1. "Exchange Act" means the Securities Exchange Act of 1934, as amended. ------------ "Global Security" means a Security evidencing all or a part of a --------------- series or Tranche of Securities, issued to the Depositary for such series or Tranche, as the case may be, in accordance with Section 2.7 and bearing the legend prescribed in Section 2.7. "Guarantor" means Newmont Gold Company, a Delaware corporation. --------- "Guarantor Senior Indebtedness" means the principal of and any premium ----------------------------- and interest on any indebtedness of the Guarantor outstanding on the date of the Indenture or to be created, incurred or assumed by the Guarantor after the date of the Indenture unless the terms of such indebtedness specifically state that it is not senior in the right of payment to the Securities. "Guaranty" means the agreement of the Guarantor set forth in Article -------- Thirteen and as endorsed (substantially in the form set forth in Section 2.4) on each Security authenticated and delivered hereunder. "Holder", "Holder of Securities", "Securityholder" or other similar ------ -------------------- -------------- terms means a Person in whose name a Security is registered in the Register. "Indenture" means this instrument as originally executed and delivered --------- or, if amended or supplemented as herein provided, as so amended and/or supplemented from time to time, and shall include (i) for all purposes of this instrument and any supplemental indenture, the provisions of the Trust Indenture Act of 1939 that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively, and (ii) the forms and terms of particular series of Securities established as contemplated hereunder. -3- "Interest" means, when used with respect to a non-interest bearing -------- Security, interest payable after the principal thereof has become due and payable whether at maturity, by declaration of acceleration, by call for redemption, pursuant to a sinking fund or otherwise. "Issuer" means Newmont Mining Corporation, a Delaware corporation, ------ until any successor corporation shall have become such pursuant to Article Eight and thereafter "Issuer" shall mean such successor except as otherwise provided in Section 8.2. "Issuer Senior Indebtedness" means the principal of, premium, if any, -------------------------- and interest (including interest accruing subsequent to the commencement of any proceeding for the bankruptcy or reorganization of the Issuer under applicable bankruptcy, insolvency or similar law now or hereafter in effect) on (a) all indebtedness for money borrowed, whether outstanding on the date of execution of this Indenture or thereafter created, assumed or incurred, except such indebtedness as is by its terms expressly stated to be not superior in right of payment to the Securities or to rank pari passu with the Securities or as identified in a Resolution or any indenture supplemental hereto as not superior in right of payment or to rank pari passu with the Securities and (b) any deferrals, renewals or extensions of any such indebtedness for money borrowed. The term "indebtedness for money borrowed" as used in the foregoing sentence means any obligation of, or any obligation guaranteed by, the Issuer for the repayment of borrowed money, whether or not evidenced by bonds, debentures, notes or other written instruments, and any deferred obligation for the payment of the purchase price of property or assets. "mandatory sinking fund payment" has the meaning set forth in Section ------------------------------ 10.5. "Market Exchange Rate" has the meaning set forth in Section 6.1. -------------------- "New York Location" means the location in the Borough of Manhattan, ----------------- The City of New York, at which at any particular time the Trustee receives and redelivers securities, which location at the date of execution of this Indenture is 111 Wall Street, New York, New York 10043. "NNM" means the Nasdaq National Market. --- "Officers' Certificate" means when used with respect to the Issuer or --------------------- the Guarantor, a certificate signed by the chairman of the Board of Directors, the president, the executive vice president or any senior vice president and by the treasurer, controller, the secretary of the Issuer or the Guarantor, as the case may be, and delivered to the Trustee. Each such certificate shall include the statements required by the Trust Indenture Act of 1939 or as provided for in Section 14.5, if and to the extent required hereby. "Opinion of Counsel" means an opinion in writing signed by legal ------------------ counsel who may be an employee of or counsel to the Issuer or the Guarantor and who shall be satisfactory to the Trustee. Each such opinion shall include the statements required by the Trust Indenture Act of 1939 or as provided for in Section 14.5, if and to the extent required hereby. "optional sinking fund payment" has the meaning set forth in Section ---------------------------- 10.5. -4- "Original Issue Date" of any Security (or portion thereof) means the ------------------- earlier of (a) the date of such Security or (b) the date of any Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange or substitution. "Original Issue Discount Security" means any Security that provides -------------------------------- for an amount less than the principal amount thereof to be due and payable upon redemption or a declaration of acceleration of the maturity thereof pursuant to Section 4.1. "Outstanding" (except as otherwise required by the Trust Indenture Act ----------- of 1939), when used with reference to Securities, shall, subject to the provisions of Section 6.4, mean, as of any particular time, all Securities theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (b) Securities, or portions thereof, which have become due and for the payment or redemption of which moneys in the necessary amount shall have been theretofore deposited in trust with the Trustee or with any paying agent (other than the Issuer) or shall have been set aside, segregated and held in trust by the Issuer for the Holders of such Securities (if the Issuer shall act as its own paying agent); and (c) Securities in lieu of or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.13, or which shall have been paid pursuant to Section 2.13. In determining whether the Holders of the requisite principal amount of Outstanding Securities of any or all series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount that shall be deemed to be Outstanding for such purposes in the case of an Original Issue Discount Security or (unless as otherwise established pursuant to Section 2.6) in the case of a Security which provides that an amount other than the face amount thereof will or may be payable upon the maturity thereof or a declaration of acceleration of the maturity thereof shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 4.1. "Overdue Rate" means, unless otherwise specified in the Securities of ------------ any series, the same rate as the rate of interest specified in the Securities of such series or, in the case of a series of Original Issue Discount Securities, the Yield to Maturity of such series of Securities. "Payment Blockage Period" has the meaning set forth in Section 11.3. ----------------------- "Person" means any individual, corporation, partnership, joint ------ venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. -5- "Principal" whenever used with reference to the Securities or any --------- Security or any portion thereof, shall be deemed to include "and premium, if any". "Principal Property" means any mine, together with any fixtures ------------------ comprising a part thereof, and any plant or other facility, together with any land upon which such plant or other facility is erected and fixtures comprising a part thereof, used primarily for mining or processing, in each case, located in the United States of America and the net book value of which on the date as of which the determination is being made exceeds 5% of Consolidated Net Tangible Assets; provided, that Principal Property shall not include (a) any mine, plant -------- or facility which, in the opinion of the Board of Directors of the Issuer, is not of material importance to the total business conducted by the Issuer and its Subsidiaries as an entirety or (b) any portion of a particular mine, plant or facility which, in the opinion of the Issuer is not of material importance to the use or operation of such mine, plant or facility. "record date" has the meaning set forth in Section 2.11. ----------- "Register" has the meaning set forth in Section 2.12. -------- "Representative" means the indenture trustee or other trustee, agent -------------- or representative for an issue of Issuer Senior Indebtedness or Guarantor Senior Indebtedness, as applicable, or, in the case of any Issuer Senior Indebtedness or Guarantor Senior Indebtedness for which there is no indenture trustee, agent or representative, any holder of such Issuer Senior Indebtedness or Guarantor Senior Indebtedness, as applicable. "Resolution" means a resolution of the Board of Directors, including ---------- without limitation any such resolution by which or pursuant to which any series of Securities is authorized and established pursuant to Section 2.6. "Responsible Officer", when used with respect to the Trustee, means ------------------- any vice president, any senior trust officer, trust officer, any assistant trust officer, or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person's knowledge of and familiarity with the particular subject. "Restricted Subsidiary" means any Subsidiary (a) substantially all of --------------------- the property of which is located, or substantially all of the business of which is carried on, within the United States of America and (b) which owns a Principal Property; provided, that Restricted Subsidiary shall not include any -------- Subsidiary the primary business of which consists of financing operations in connection with leasing and conditional sales transactions on behalf of the Issuer and its Subsidiaries, and/or purchasing accounts receivable and/or making loans secured by accounts receivable or inventory, or which is otherwise primarily engaged in the business of a finance company. "Securities Act" means the Securities Act of 1933, as amended. -------------- -6- "Security" or "Securities" (except as otherwise required by the Trust -------- ---------- Indenture Act of 1939) has the meaning stated in the first recital of this Indenture or means any Securities that have been issued, authenticated and delivered under this Indenture, as the context may require. "Security registrar" has the meaning set forth in Section 2.12. ------------------ "Series", as used in the definitions of "Indenture" and "Overdue Rate" ------ in this Section 1.1 and as used in Section 2.6 (except as used in the first sentence of the second paragraph thereof and in the first and last sentences of the third paragraph thereof), 2.10, 2.11, 2.12, 2.13, 2.15, 3.1, 3.2, 3.3 (except as used in the fourth paragraph thereof), 10.1, 10.2, 10.3 and 10.5, means "Tranche" for any Securities of a series of Securities consisting of more than one Tranche. "sinking fund payment date" has the meaning set forth in Section 10.5. ------------------------- "Specified currency" has the meaning set forth in Section 6.1. ------------------ "Subsidiary" means any corporation or any other entity of which at ---------- least a majority of the outstanding stock or other ownership interests having by the terms thereof ordinary voting power for the election of directors, managers or trustees of such corporation or any other entity or other persons performing similar functions (irrespective of whether or not at the time stock or other ownership interests of any other class or type of such corporation or entity shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by the Issuer, or by one or more other Subsidiaries, or by the Issuer and one or more other Subsidiaries. "Tranche" means all Securities of the same series having the same ------- Original Issue Date, interest rate, maturity, repayment and redemption provisions. "Time of Determination" has the meaning set forth in Section 12.5. --------------------- "Trading Day" has the meaning set forth in Section 12.5. ----------- "Trust Indenture Act of 1939" (except as otherwise provided in --------------------------- Sections 7.1 and 7.2) means the Trust Indenture Act of 1939, as amended, as in force at the date as of which this Indenture was originally executed; provided, -------- however, that in the event the Trust Indenture Act of 1939 is amended after such - ------- date, "Trust Indenture Act of 1939" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended. "Trustee" means the Person identified as "Trustee" in the first ------- paragraph hereof and, subject to the provisions of Article Five, shall also include any successor trustee. If pursuant to the provisions of this Indenture there shall be at any time more than one Trustee hereunder, the term "Trustee" as used with respect to Securities of any series shall mean the Trustee or Trustees with respect to the Securities of that series. "U.S. Government Obligations" has the meaning set forth in Section --------------------------- 9.8. -7- "vice president", (i) when used with respect to the Issuer, means the ------------- executive vice president and any senior vice president, (ii) when used with respect to the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title of "vice president". "Yield to Maturity" means, in the case of any Original Issue Discount ----------------- Security, the yield to maturity specified in such Security or in a Resolution relating thereto. ARTICLE TWO SECURITIES ---------- SECTION 2.1 Forms Generally. The Securities of each series shall be --------------- substantially in the form set forth in this Article, or in such other form as shall be established by or pursuant to a 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 imprinted or otherwise reproduced thereon such letters, numbers or other marks of identification and such legends or endorsements as may be required to comply with any applicable law, rule or regulation or with the rules of any securities exchange or as may, consistent with the provisions of this Indenture, be determined by the officers executing such Securities, as evidenced by their execution of the Securities. In the case of Securities of any series that are denominated in a coin or currency (including composite currencies or currency units) that is, or may be, replaced by the euro, the form of such Securities may contain such insertions, omissions, substitutions and other variations as may be deemed appropriate or required. In the case of Securities of any series that are convertible at the option of Holders into shares of Common Stock, the form of election to convert shall be substantially in the form set forth in Section 2.17, or in such other form as shall be established by or pursuant to a 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 be imprinted or otherwise reproduced on the Securities of such series. The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities. SECTION 2.2 Form of Face of Security. [If the Security is an ------------------------ Original Issue Discount Security, insert any legend required by the Internal Revenue Code of 1986, as amended and the regulations thereunder.] -8- No. $_____________ CUSIP No. ________ NEWMONT MINING CORPORATION [Insert Designation of Series] Newmont Mining Corporation, a corporation duly organized and existing under the laws of the State of Delaware (herein called the "Issuer"), for value received, hereby promises to pay to ________, or registered assigns, the principal sum of ____________________ on _______________ [if the Security is to --------------------- bear interest prior to maturity, insert--, and to pay interest thereon [[insert - --------------------------------------- ------ as applicable--annually or semi-annually or quarterly]] on [[insert appropriate - ------------- -- -- ------------------ interest payment dates]] (the "Interest Payment Dates") in each year, commencing - ---------------------- _____________, [insert--at the rate of __% per annum or, if applicable, insert -------- ------------------------- the method for determining the adjustable, floating or other form of variable - ----------------------------------------------------------------------------- interest rate borne by the Securities] until the principal hereof is paid or - ------------------------------------- made available for payment [if applicable, insert --, and (to the extent that --------------------- the payment of such interest shall be legally enforceable) at the rate of __% per annum on any overdue principal and premium, if any, and on any overdue installment of interest]. Notwithstanding the foregoing, this Security shall bear interest from the most recent Interest Payment Date to which interest in respect hereof has been paid or duly provided for, unless (i) the date hereof is such an Interest Payment Date, in which case from the date hereof, or (ii) no interest has been paid on this Security, in which case from ____________; provided, however, that if the Issuer shall default in the payment of interest due on the date hereof, then this Security shall bear interest from the next preceding Interest Payment Date to which Interest has been paid or, if no interest has been paid on this Security from __________. Notwithstanding the foregoing, if the date hereof is after the _________ [insert if applicable-- or __________] (whether or not a Business Day) (the "Record Date"), [insert if applicable-- as the case may be,] next preceding an Interest Payment Date and before such Interest Payment Date, this Security shall bear interest from such Interest Payment Date; provided, however, that if the Issuer shall default in the payment of interest due on such Interest Payment Date, then this Security shall bear interest from the next preceding Interest Payment Date to which interest has been paid or, if no interest has been paid on this Security, from _________. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, subject to certain exceptions provided in the Indenture referred to on the reverse hereof, be paid to the Person in whose name this Security is registered at the close of business on the Record Date next preceding such Interest Payment Date. Unless otherwise specified for the ---------------------------------- Security pursuant to Section 2.6, insert - [Interest on this Security will be - ---------------------------------------- computed and paid on the basis of a 360-day year of twelve 30-day months.] [If the Security is not to bear interest prior to maturity, insert-- ----------------------------------------------------------------- The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at maturity and in such case the overdue principal of this Security shall bear interest at the rate of __% per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such default in payment to the date payment of such principal has been made or duly provided for. Interest on any -9- overdue principal shall be payable on demand. Any such interest on any overdue principal that is not so paid on demand shall bear interest at the rate of __% per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such demand for payment to the date payment of such interest has been made or duly provided for, and such interest shall also be payable on demand.] To secure the due and punctual payment of the principal [If the ------ Security is to bear interest prior to maturity, insert--and interest], if any, - ------------------------------------------------------ on the Securities of this series and all other amounts payable by the Issuer under the Indenture and the Securities when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the Securities and the Indenture, Newmont Gold Company (the "Guarantor") has unconditionally guaranteed on a subordinated basis the Securities pursuant to the terms of the Guaranty endorsed hereon and in the Indenture referred to on the reverse hereof (the "Guaranty"). Payment of the principal of and [if applicable, insert--any such] --------------------- interest on this Security will be made at the office or agency of the Issuer maintained for that purpose in [insert the places of payment], in [insert the ---------------------------- ---------- currency or currencies of payment]; provided, however, that at the option of the - --------------------------------- -------- ------- Issuer payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security register. [If the Security is an extendible security, insert--The Securities of ------------------------------------------------- this series are subject to repayment on [insert provisions with respect to --------------------------------- repayment date or dates] at the option of the Holders thereof exercisable on or - ----------------------- before the _________________, but not prior to the _______________ preceding such ____________, at a repayment price equal to the principal amount thereof to be repaid, together with interest payable thereon to the repayment date, as described on the reverse side hereof.] Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed under its corporate seal. NEWMONT MINING CORPORATION By___________________________________________ Attest: -10- SECTION 2.3 Form of Reverse of Security. --------------------------- NEWMONT MINING CORPORATION This Security is one of a duly authorized issue of subordinated securities of the Issuer (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of ___________, (herein called the "Indenture"), among the Issuer, the Guarantor and Citibank, N.A., as Trustee (herein called the "Trustee"), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Issuer, the Guarantor, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable, insert--limited in aggregate principal amount to --------------------- _________]. The separate series of Securities may be issued in various aggregate principal amounts, may mature at different times, may bear interest, if any, at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking or purchase funds (if any), may have different conversion provisions (if any), may be subject to different repayment provisions (if any), may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided. The Indenture further provides that the Securities of a single series may be issued at various times, with different maturity dates, may bear interest, if any, at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking or purchase funds (if any) and may be subject to different repayment provisions (if any). The Securities of this series are subordinated to Issuer Senior Indebtedness, as defined in the Indenture. To the extent provided in the Indenture, Issuer Senior Indebtedness must be paid before the Securities of this series may be paid. The Issuer agrees, and each Securityholder by accepting a Security agrees, to the subordination provisions contained in the Indenture and authorizes the Trustee to give them effect and appoints the Trustee as attorney- in-fact for such purpose. [If applicable, insert -- The Securities of this series may not be --------------------- redeemed prior to maturity.] [If applicable, insert -- The Securities of this series are subject to --------------------- redemption upon not less than 30 nor more than 60 days' notice by mail, [[if -- applicable, insert --(1) on ______ in any year commencing with the year ______ - ------------------ and ending with the year ____ through operation of the sinking fund for this series (as more fully described in the next succeeding paragraph) at [[insert ------ either--a redemption price equal to 100% of the principal amount of the - ------ Securities to be redeemed or the redemption prices for redemption through -- operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below,]], and (2)]] at any time [[if appicable, insert-- -------------------- on or after _________]], as a whole or in part, at the election of the Issuer, at the [[insert either--following redemption prices or redemption prices for ------ ------ -- for redemption otherwise than through operation of the sinking fund]] (expressed as percentages of the principal -11- amount): if redeemed [[if applicable, insert--on or before ________, __%, and if --------------------- redeemed]] during the 12-month period beginning ________ of the years indicated, Redemption Price [[If applicable, insert - For Redemption Price For Redemption [[if applicable, insert - Otherwise Than --------------------- Through Operation Through Operation Year of the Sinking Fund]] of the Sinking Fund]] - ---- --------------------- --------------------- and thereafter at a redemption price equal to __% of the principal amount thereof, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the date fixed for redemption, but interest installments maturing on or prior to such redemption date will be payable to the Holders of such Securities of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.] [If applicable, insert--The sinking fund for this series provides for --------------------- the redemption on ________ in each year beginning with the year ____ and ending with the year ____ of [[not less than]] $________ [[("mandatory sinking fund payments") and not more than $________]] aggregate principal amount of Securities of this series.] [If applicable, insert--Securities of this series --------------------- acquired or redeemed by the Issuer otherwise than through [[mandatory]] sinking fund payments [[if applicable insert -- and Securities of this series surrendered to the Issuer for conversion]] may be credited against subsequent [[mandatory]] sinking fund payments otherwise required to be made.] [If applicable, insert--Notwithstanding the foregoing, the Issuer may --------------------- not, prior to ________, redeem any Securities of this series as contemplated by [[Clause (2) of]] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Issuer (calculated in accordance with generally accepted financial practice) of less than __% per annum.] [If applicable, insert--Partial redemptions must be in an amount not --------------------- less than $______________ principal amount of Securities.] [If applicable, insert--In the event of redemption of this Security in --------------------- part only, a new Security or Securities of this series for the unredeemed portion hereof having the same interest rate and maturity as this Security will be issued in the name of the Holder hereof upon the cancellation hereof.] -12- [If the Security is convertible at the option of the Holder, insert-- -------------------------------------------------------------------- Subject to the provisions of the Indenture, the Holder hereof has the right at his option at any time until the close of business of the third Business Day preceding the maturity date hereof (except that, in case this Security shall be called for redemption before maturity, such right shall terminate in respect of this Security at the close of business on the third Business Day preceding the date fixed for redemption of this Security unless the Issuer shall default in payment due upon such redemption) to convert this Security (or any portion hereof which is [[insert minimum denomination]] or an integral multiple thereof) --------------------------- into fully paid and nonassessable shares of Common Stock, at the initial Conversion Price of [[U.S.$]]_________ per share of Common Stock, subject to such adjustment, if any, of the Conversion Price and the securities or other property issuable upon conversion as may be required by the provisions of the Indenture, but only upon surrender of this Security to the Trustee or to the conversion agent for surrender to the Issuer in accordance with the instructions on file with the conversion agent, accompanied by a written notice of election to convert, which shall be substantially in the Form of Election to Convert contained in the Indenture, and (if required by the Issuer) by an instrument or instruments of transfer, in form satisfactory to the Issuer, duly executed by the Holder or by his attorney duly authorized in writing. No payment or adjustment is to be made on conversion of this Security for interest accrued hereon or for dividends on Common Stock issued on conversion; provided, however, that if this Security is surrendered for conversion after the Record Date for a payment of interest and on or before the Interest Payment Date, then, notwithstanding such conversion, the interest falling due on such Interest Payment Date will be paid to the person in whose name this Security is registered at the close of business on such Record Date and any Security surrendered for conversion during the period from the close of business on any Record Date to the opening of business on the corresponding Interest Payment Date must be accompanied by payment of an amount equal to the interest payable on such Interest Payment Date. No fractional shares shall be issuable upon any conversion, but in lieu thereof the Issuer shall make an adjustment therefor in cash as provided in the Indenture.] [If the Security is not an Original Issue Discount Security, insert-- ------------------------------------------------------------------ If an Event of Default with respect to Securities of this series shall occur and be continuing, then the Trustee or the Holders of not less than 25% in aggregate principal amount (calculated as provided in the Indenture) of the Securities of this series then Outstanding may declare the principal of the Securities of this series and accrued interest thereon, if any, to be due and payable in the manner and with the effect provided in the Indenture.] [If the Security is an Original ------------------------------ Issue Discount Security, insert--If an Event of Default with respect to - ------------------------------- Securities of this series shall occur and be continuing, then the Trustee or the Holders of not less than 25% in aggregate principal amount (calculated as provided in the Indenture) of the Securities of this series then Outstanding may declare an amount of principal of the Securities of this series due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to [[insert formula for determining the amount]].] ----------------------------------------- [If the Security is an extendible security, insert --The Securities of ------------------------------------------------- this series are subject to repayment in whole, or in part, on [insert month, day ----------------- and years], in increments of _______ or multiples of _______ in excess of - --------- ______, provided that the portion of the principal amount of any Security of this series not being repaid shall be at least _____, at the option of the Holder thereof at a repayment price equal to the principal amount thereof to be repaid, together -13- with interest payable thereon to the repayment date. For this Security to be repaid at the option of the Holder, the Trustee must receive at the Corporate Trust Office or the New York Location, on or before the [insert month and day] ------ ------------- or, if such [insert month and day] is not a day other than a day on which -------------------- banking institutions in the Borough of Manhattan, the City and State of New York are authorized or required by law or regulation to close (a "Business Day"), the next succeeding Business Day, but not earlier than the [insert month and day] -------------------- prior to the [insert month and day] on which the repayment price will be paid -------------------- (i) this Security, with the form entitled "Option to Elect Repayment" below duly completed, or (ii) a facsimile transmission or letter from a member of a national securities exchange or the National Association of Securities Dealers, Inc. or a commercial bank or trust company in the United States of America setting forth the name of the Holder of this Security, the principal amount of the Security, the amount of such Security to be repaid, a statement that the option to elect repayment is being made thereby and a guarantee that the Security to be repaid with the form entitled "Option to Elect Repayment" on the reverse thereof duly completed will be received by the Issuer no later than five Business Days after the date of such facsimile transmission or letter, and such Security and form duly completed are received by the Issuer by such fifth Business Day. Either form of notice duly received on or before the [insert month ------------ and day] preceding any such [insert month and day] shall be irrevocable. All - ------- -------------------- questions as to the validity, eligibility (including time of receipt) and acceptance of any Securities of this series for repayment will be determined by the Issuer, whose determination shall be final and binding.] The Indenture permits, with certain exceptions as therein provided, the amendment or supplementing thereof and the modification of the rights and obligations of the Issuer and the Guarantor and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Issuer, the Guarantor and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount (calculated as provided in the Indenture) of the Securities at the time Outstanding of all series to be affected (all such series voting as a single class). The Indenture also contains provisions permitting the Holders of not less than a majority in aggregate principal amount (calculated as provided in the Indenture) of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive certain past defaults or Events of Default under the Indenture and the consequences of any such defaults or Events of Default. Any such consent or waiver by the Holder of this Security (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security. No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest, if any, on this Security at the times, place and rate, if any, and in the coin or currency, herein prescribed. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security register, upon due presentment of this Security for registration of transfer at the office or agency of the Issuer in any place where the principal of and interest, if any, on this Security are payable, duly endorsed by, or accompanied by -14- a written instrument of transfer in form satisfactory to the Issuer and the Security registrar duly executed by the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series, having the same interest rate and maturity and bearing interest from the same date as this Security, of any authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. The Securities of this series are issuable only in registered form without coupons in denominations of ________ and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series of a different authorized denomination having the same interest rate and maturity and bearing interest from the same date as such Securities, as requested by the Holder surrendering the same. No service charge shall be made for any such registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment of this Security for registration of transfer, the Issuer, the Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue and notwithstanding any notation of ownership or other writing thereon, and none of the Issuer, the Guarantor, the Trustee or any such agent shall be affected by notice to the contrary. All payments made to or upon the order of such registered Holder, shall, to the extent of the sum or sums paid, effectually satisfy and discharge liability for monies payable on this Security. No recourse for the payment of the principal of or interest, if any, on this Security, or for payment pursuant to the Guaranty, or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Issuer or the Guarantor in the Indenture or any indenture supplemental thereto or in any Security, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, official or director, as such, past, present or future, of the Issuer or the Guarantor or of any successor entity, either directly or through the Issuer or the Guarantor, as the case may be, or any successor entity, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released. All terms used in this Security and not otherwise defined herein which are defined in the Indenture shall have the meanings assigned to them in the Indenture. This Security shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflicts of laws principles thereof. SECTION 2.4 Form of Notation on Security Relating to Guaranty. ------------------------------------------------- GUARANTY -------- -15- Newmont Gold Company, a company organized under the laws of Delaware (the "Guarantor"), FOR VALUE RECEIVED, hereby irrevocably and unconditionally guarantees on a subordinated basis to the Holder of the Security upon which this Guaranty is endorsed, the due and punctual payment of the principal, premium, if any, and interest, if any, on the Security upon which this Guaranty is endorsed, when and as the same shall become due and payable, subject to any applicable grace period, whether on the date of maturity, by acceleration or upon redemption pursuant to Article Ten of the Indenture referred to in the Security on which this Guaranty is endorsed or otherwise. This Guaranty is, to the extent and in the manner set forth in Article Thirteen of the Indenture, subordinated in right of payment to the prior payment in full of all Guarantor Senior Indebtedness (as defined in the Indenture) whether outstanding on the date hereof or hereafter created, incurred, assumed or guaranteed, and each Holder of the Security upon which this Guaranty is endorsed, by accepting the same, agrees to and shall be bound by such provisions. The obligations of the Guarantor to the Holders of Securities and to the Trustee pursuant to this Guaranty and the Indenture, and the rights of the Guarantor with respect thereto, are expressly set forth in Article Thirteen of the Indenture and reference is hereby made to the Indenture for the precise terms of this Guaranty, which are incorporated herein by reference and made a part thereof. No incorporator, shareholder, officer or director, as such, past, present or future of the Guarantor shall have any liability under this Guaranty by reason of his, her or its status as such incorporator, shareholder, officer or director. The Guarantor hereby agrees that its obligations hereunder and under Article Thirteen of the Indenture shall be as principal obligor and not merely as surety, and shall be unconditional, irrevocable and absolute, irrespective of the validity, regularity or enforceability of the Security on which this Guaranty is endorsed or the Indenture, the absence of any action to enforce the same, any waiver or consent by the Holder of such Security with respect to any provisions thereof, the recovery of any judgment against the Issuer, any action to enforce the same, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a 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 Issuer, any right to require a proceeding first against the Issuer, protest or notice with respect to such Security or indebtedness evidenced thereby, and all demands whatsoever and covenants that this Guaranty will not be discharged except by complete performance of the obligations of the Guarantor contained in the Indenture and in this Guaranty. The Guarantor shall be subrogated to all rights of the Holder of the Security on which this Guaranty is endorsed against the Issuer in respect to any amounts paid by the Guarantor pursuant to the provisions of this Guaranty as and to the extent provided in Article Thirteen of the Indenture. -16- This Guaranty shall not be valid or obligatory for any purpose until the certificate of authentication on the Security upon which this Guaranty is endorsed shall have been executed by the Trustee under the Indenture by the manual signature of one of its authorized signatories. This Guaranty shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflicts of laws principles thereof. Capitalized terms used herein and not otherwise defined herein have the meanings specified in the Indenture. IN WITNESS WHEREOF this instrument has been duly executed in the name of the Guarantor. NEWMONT GOLD COMPANY By:_____________________________ Name: Title: SECTION 2.5 Form of Trustee's Certificate of Authentication. The ----------------------------------------------- Trustee's certificate of authentication on all Securities shall be in substantially the following form: This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture. Dated: CITIBANK, N.A., as Trustee By_________________________________ Authorized Signatory SECTION 2.6 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, each of which may consist of one or more Tranches. The Securities shall be subordinate and junior in right of payment to Issuer Senior Indebtedness as provided in Article Eleven. The Securities of any Series will rank pari passu without any preference among ---- ----- themselves and with all other present and future unsecured and equally subordinated obligations of the Issuer. There shall be established in or pursuant to a Resolution, a copy of which, certified by the secretary or an assistant secretary of the Issuer, shall be delivered to the Trustee, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of a particular series, -17- (1) the title of the Securities of the series (which shall distinguish the Securities of the series from all other 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 2.12, 2.13 or 10.3); (3) the date or dates 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 (including the Overdue Rate) shall be determined, the date or dates from which such interest shall accrue or the method by which such date or dates may be determined, the interest payment dates on which such interest shall be payable and the record dates for the determination of Holders to whom interest is payable; (5) the place or places where the principal and any interest on Securities of the series shall be payable; (6) the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Issuer, pursuant to any sinking fund or otherwise; (7) the obligation, if any, of the Issuer to redeem, purchase or repay Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation; (8) the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the series may be repaid, in whole or in part, at the option of the Holder thereof; (9) if other than Dollars, the coin or currency (including composite currencies or currency units) in which the Securities of the series shall be denominated and, if different, the coin or currency (including composite currencies or currency units) in which payment of the principal of and/or interest on the Securities of the series shall be payable, and if such coin or currency (including composite currencies or currency units) is replaced by the euro, the provisions to effect such replacement; (10) if the principal of and/or interest on the Securities of the series are to be payable, at the election of the Issuer or a Holder thereof, in a coin or currency (including composite currencies or currency units) other than that in which the Securities are stated to be payable, the period or periods within which, and the terms and conditions upon which, such election may be made; -18- (11) if the amount of payments of principal of and/or interest on the Securities of the series may be determined with reference to an index based on a coin or currency (including composite currencies or currency units) other than that in which the Securities are stated to be payable or with reference to any other index, the manner in which such amounts shall be determined; (12) if other than denominations of U.S.$1,000 (or if the Securities are denominated in a currency other than Dollars or in a composite currency, 1,000 units of such other currency or composite currency or other currency units) and any multiple thereof, the denominations in which Securities of the series shall be issuable; (13) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 4.1 or provable in bankruptcy pursuant to Section 4.2; (14) if the Securities of the series are Original Issue Discount Securities, the price at which and the date on which Securities of the series are to be issued and the Yield to Maturity at the time of issuance of such series; (15) if the Securities of the series are convertible into Common Stock, the Conversion Price therefor, the period during which such Securities are convertible and any terms and conditions for the conversion of such Securities which differ from Article Twelve; and (16) any other terms of the series which are not inconsistent with this Indenture. In the case of Securities of a series issued in Tranches, all Securities of any one Tranche shall be substantially identical, except as to denomination. Except as provided in the preceding sentence, all Securities of any one series shall be substantially identical except as to denomination, interest rate and maturity and except as may otherwise be provided in or pursuant to such Resolution or in any such indenture supplemental hereto. The applicable Resolution or the applicable supplemental indenture may provide that Securities of any particular series may be issued at various times, with different maturities and redemption and repayment provisions (if any) and bearing interest at different rates, but shall for all purposes under this Indenture, including, but not limited to, voting and Events of Default, be treated as Securities of a single series. Except as otherwise specified pursuant to this Section 2.6 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months. SECTION 2.7 Authentication and Delivery of Securities. At any time ----------------------------------------- and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication, with, in each case, the Guaranty endorsed thereon executed by the Guarantor, and the Trustee shall thereupon authenticate and make available for delivery such Securities to or upon the written order of the -19- Issuer, signed by both (a) its chairman, its president, its executive vice president or any senior vice president and (b) its treasurer, its controller, its secretary, without any further action by the Issuer. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities the Trustee shall be entitled to receive, and (subject to the requirements of the Trust Indenture Act of 1939) shall be fully protected in relying upon: (1) a copy of any Resolution or Resolutions relating to such series, certified by the secretary or an assistant secretary of each of the Issuer and the Guarantor; (2) an executed supplemental indenture, if any, relating thereto; (3) an Officers' Certificate of the Issuer setting forth the form and terms of the Securities as required pursuant to Sections 2.1 and 2.6, respectively, and prepared in accordance with the requirements of the Trust Indenture Act of 1939 and Section 14.5; (4) an Opinion of Counsel, prepared in accordance with the requirements of the Trust Indenture Act of 1939 and Section 14.5, which shall state that (i) if the form of such Securities has been established by or pursuant to a Resolution of the Issuer as permitted by Section 2.1, that such form or forms, as the case may be, have been established in conformity with the provisions of this Indenture, and that the terms of such Securities have been established by or pursuant to a Resolution of the Issuer as permitted by Section 2.6 in conformity with the provisions of this Indenture and that the authentication and delivery of such Securities by the Trustee is authorized under the provisions of this Indenture and (ii) that such Securities, when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel will constitute valid and legally binding obligations of the Issuer, enforceable in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and to general principles of equity regardless of whether the issue of enforceability is considered in a proceeding in equity or at law; and (5) an Opinion of Counsel, prepared in accordance with the requirements of the Trust Indenture Act of 1939 and Section 14.5, which shall state that the Guaranty endorsed upon such Securities, when such Securities are authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute the valid and legally binding obligation of the Guarantor, enforceable in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and to general principles of equity, regardless of whether the issue of enforceability is considered in a proceeding in equity or at law. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith by its board of directors or board of trustees, executive committee, or a trust committee of directors or trustees and/or -20- Responsible Officers shall determine that such action would expose the Trustee to personal liability to existing Holders or would adversely affect the Trustee's own rights, duties or immunities under this Indenture or otherwise. The Trustee shall not be required to authenticate Securities denominated in a coin or currency other than that of the United States of America if the Trustee reasonably determines that such Securities impose duties or obligations on the Trustee which the Trustee is not able or reasonably willing to accept; provided that the Trustee, upon the request of the Issuer, will resign as Trustee with respect to Securities of any series as to which such a determination is made, prior to the issuance of such Securities, and will comply with the request of the Issuer to execute and deliver a supplemental indenture appointing a successor Trustee pursuant to Section 7.1. If the Issuer shall establish pursuant to Section 2.6 that the Securities of a series or a Tranche are to be issued in the form of one or more Global Securities, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the order of the Issuer with respect to such series, authenticate and deliver one or more Global Securities, in each case with the Guaranty endorsed thereon executed by the Guarantor, that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of the Securities of such series or such Tranche, as the case may be, issued and not yet cancelled, (ii) shall be registered in the name of the Depositary for such Global Security or Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary's instructions and (iv) shall bear such legend, if any, as shall be required by the Depositary. Each Depositary of a Global Security designated pursuant to Section 2.6 must, at the time of its designation and at all times while it serves as Depositary hereunder, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation. SECTION 2.8 Execution of Securities. The Securities shall be signed ----------------------- on behalf of the Issuer by the chairman of its Board of Directors, its president, the executive vice president, any senior vice president or its treasurer, under its corporate seal which shall be attested by the secretary or any assistant secretary of the Issuer. Such signatures may be the manual or facsimile signatures of the present or any future such officers. The seal of the Issuer may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Securities. Typographical and other minor errors or defects in any such reproduction of the seal or any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee. In case any officer of the Issuer who shall have signed any of the Securities shall cease to be such officer before the Security so signed shall be authenticated and delivered by the Trustee or disposed of by the Issuer, such Security nevertheless may be authenticated and delivered or disposed of as though the person who signed such Security had not ceased to be such officer of the Issuer; and any Security may be signed on behalf of the Issuer by such persons as, at the actual date of the execution of such Security, shall be the proper officers of the Issuer, although at the date of the execution and delivery of this Indenture any such person was not such an officer. -21- SECTION 2.9 Certificate of Authentication. Unless a certificate of ----------------------------- authentication, substantially in the form hereinbefore recited, set forth on a Security has been executed by the Trustee by the manual signature of one of its authorized signatories, such Security shall not be entitled to the benefits of this Indenture and neither such Security nor the Guaranty endorsed thereon shall be valid or obligatory for any purpose. Such certificate by the Trustee upon any Security executed by the Issuer shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture. SECTION 2.10 Execution and Delivery of Guaranty. To evidence the ---------------------------------- Guaranty to the Securityholders hereunder, the Guaranty, substantially in the form provided in Section 2.4, shall be endorsed on each Security authenticated and delivered hereunder. The Guaranty endorsed upon each such Security shall be signed in the name of the Guarantor by the president, the executive vice president, any senior vice president or treasurer of the Guarantor. Such signature may be the manual or facsimile signature of the present or any future such officers. Typographical and other minor errors or defects in any such reproduction of any such signature shall not affect the validity or enforceability of the Guaranty endorsed upon any Security that has been duly authenticated and delivered by the Trustee. In case any officer of the Guarantor who shall have signed any Guaranty shall cease to hold such office before the Security on which such Guaranty is endorsed shall be authenticated and delivered by the Trustee or disposed of by the Issuer, such Security nevertheless may be authenticated and delivered or disposed of as though the Person who signed such Guaranty had not ceased to hold such office; and the Guaranty on any Security may be signed in the name of the Guarantor by such Persons as, at the actual date of the execution of such Guaranty, shall be the proper officers of the Guarantor, although at the date of the execution and delivery of this Indenture any such person was not such an officer. SECTION 2.11 Denomination and Date of Securities; Payments of ------------------------------------------------ Interest. The Securities of each series shall be issuable as registered - -------- securities without coupons and in denominations as shall be specified as contemplated by Section 2.6. In the absence of any such specification with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of U.S.$1,000 (or, if such Securities are denominated in a currency other than U.S. dollars or in a composite currency, 1,000 units of such other currency or composite currency) and any multiple thereof. The Securities of each series shall be numbered, lettered or otherwise distinguished in such manner or in accordance with such plan as the officers of the Issuer executing the same may determine with the approval of the Trustee as evidenced by the execution and authentication thereof. Each Security shall be dated the date of its authentication, shall bear interest, if any, from the date, and shall be payable on the dates, in each case, which shall be specified as contemplated by Section 2.6. Except as otherwise specified for a particular series pursuant to Section 2.6, the Person in whose name any Security of any series is registered at the close of business on any record date (as hereinafter defined) applicable to a particular series with respect to any interest -22- payment date for such series shall be entitled to receive the interest, if any, payable on such interest payment date notwithstanding the cancellation of such Security upon any registration of any transfer or exchange of such Security subsequent to the record date and prior to such interest payment date, except if and to the extent the Issuer shall default in the payment of the interest due on such interest payment date for such series, in which case such defaulted interest shall be paid to the Persons in whose names Outstanding Securities of such series are registered at the close of business on a subsequent record date (which shall be not less than five days prior to the date of payment of such defaulted interest) established by notice given by mail by or on behalf of the Issuer to the Holders of Securities not less than 15 days preceding such subsequent record date. The term "record date" as used with respect to any interest payment date (except a date for payment of defaulted interest) shall mean the date specified as such in the terms of the Securities of any particular series, or, if no such date is so specified, if such interest payment date is the first day of a calendar month, the fifteenth day of the next preceding calendar month or, if such interest payment date is the fifteenth day of a calendar month, the first day of such calendar month, whether or not such record date is a Business Day. SECTION 2.12 Registration, Transfer and Exchange. The Issuer will ----------------------------------- keep, either at the office or agency designated and maintained by the Issuer for such purpose in the Borough of Manhattan, The City of New York, in accordance with the provisions of Section 3.2, or at any of such other offices or agencies as may be designated and maintained in accordance with the provisions of Section 3.2, a register or registers in which, subject to such reasonable regulations as it may prescribe, it will register, and will register the transfer of, Securities of a series as in this Article provided. Such register shall be in written form in the English language or in any other form capable of being converted into such form within a reasonable time. At all reasonable times such register or registers shall be open for inspection by the Trustee and any Security registrar (as defined below) other than the Trustee. Upon due presentation for registration of transfer of any Security of any series at any such office or agency to be maintained for the purpose as provided in Section 3.2, the Issuer shall execute (in each case with the Guaranty endorsed thereon executed by the Guarantor) and the Trustee shall authenticate and make available for delivery in the name of the transferee or transferees a new Security or Securities of the same series in authorized denominations for a like aggregate principal amount and having the same interest rate, maturity and repayment and redemption provisions. Any Security or Securities of any series (other than a Global Security, except as set forth below) may be exchanged for a Security or Securities of the same series in other authorized denominations, in an equal aggregate principal amount and having the same interest rate, maturity, redemption and repayment provisions. Securities of any series to be exchanged shall be surrendered at any office or agency to be maintained by the Issuer for the purpose as provided in Section 3.2, and the Issuer shall execute (in each case with the Guaranty endorsed thereon executed by the Guarantor) and the Trustee shall authenticate and make available for delivery in exchange therefor the Security or Securities of the same series and having the same interest rate, maturity and repayment and redemption provisions which the Securityholder making the exchange shall be entitled to receive, bearing numbers or other distinguishing symbols not contemporaneously outstanding. Each Person designated by the Issuer pursuant to the provisions -23- of Section 3.2 as a Person authorized to register and register transfer of the Security is sometimes herein referred to as a "Security registrar". The Issuer will at all times designate one Person (who may be the Issuer and who need not be a Security registrar) to act as repository of a master list of names and addresses of the Holders of the Securities (the "Register"). The Trustee shall act as such repository unless and until some other Person is, by written notice from the Issuer to the Trustee and each Security registrar, designated by the Issuer to act as such. The Issuer shall cause each Security registrar to furnish to such repository, on a current basis, such information as to all registrations of transfer and exchanges effected by such registrar, as may be necessary to enable such repository to maintain the Register on as current a basis as is practicable. No Person shall at any time be designated as or act as a Security registrar unless such Person is at such time empowered under applicable law to act as such and duly registered to act as such under and to the extent required by applicable law and regulations. All Securities presented for registration of transfer, exchange, redemption or payment shall (if so required by the Issuer or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer or exchange in form satisfactory to the Issuer and the Trustee duly executed by, the Securityholder or his attorney duly authorized in writing. The Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any exchange or registration of transfer of Securities, other than exchanges pursuant to Section 2.15, 7.5 or 10.3 not involving any registration of transfer. No service charge shall be made for any such transaction. The Issuer shall not be required to exchange or register a transfer of (a) any Securities of any series for a period of 15 days next preceding the selection of Securities of that series to be redeemed, or (b) any Securities selected, called or being called for redemption or surrendered for repayment in whole or in part except, in the case of any Security to be redeemed or repaid in part, the portion thereof not so to be redeemed or repaid. Notwithstanding any other provision of this Section 2.12, unless and until it is exchanged in whole or in part for Securities in definitive registered form, a Global Security representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depository to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary. If at any time the Depositary for any Securities of a series represented by one or more Global Securities notifies the Issuer that it is unwilling or unable to continue as Depositary for such Securities or if at any time the Depositary for such Securities shall no longer be eligible under Section 2.7, the Issuer shall appoint a successor Depositary with respect to such Securities. If a successor Depositary for such Securities is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such ineligibility, the Issuer's election -24- pursuant to Section 2.6 that such Securities be represented by one or more Global Securities shall no longer be effective and the Issuer will execute, and the Trustee, upon receipt of an Officers' Certificate for the authentication and delivery of definitive Securities of such series, will authenticate and make available for delivery definitive Securities of the same series, in any authorized denominations, in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such Securities, in exchange for such Global Security or Securities. The Issuer may at any time, and in its sole discretion, determine that Securities issued in the form of one or more Global Securities shall no longer be represented by a Global Security or Securities. In such event the Issuer will execute, and the Trustee, upon receipt of an Officers' Certificate for the authentication and delivery of definitive Securities, will authenticate and make available for delivery definitive Securities of the same series, in any authorized denominations, in an aggregate principal amount equal to the principal amount of the Registered Global Security or Securities, in exchange for such Global Security or Securities. If specified by the Issuer pursuant to Section 2.6 with respect to Securities represented by a Global Security, the Depositary for such Global Security may surrender such Global Security in exchange in whole or in part for definitive Securities of the same series on such terms as are acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall execute, with the Guaranty thereon executed by the Guarantor, and the Trustee shall authenticate and make available for delivery, without service charge: (i) to the Person specified by such Depositary, a new Security or Securities of the same series, of any authorized denominations as requested by such person, in an aggregate principal amount equal to and in exchange for such person's beneficial interest in the Global Security; and (ii) to such Depositary a new Global Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Securities authenticated and delivered pursuant to clause (i) above. Upon the exchange of a Global Security for definitive Securities, in authorized denominations, such Global Security shall be cancelled by the Trustee or an agent of the Issuer or the Trustee. Definitive Securities issued in exchange for a Global Security pursuant to this Section 2.12 shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee or an agent of the Issuer or the Trustee. The Trustee or such agent shall make such Securities available for delivery to or as directed by the Persons in whose names such Securities are so registered. SECTION 2.13 Mutilated, Defaced, Destroyed, Lost and Stolen ---------------------------------------------- Securities. In case any temporary or definitive Security shall become - ---------- mutilated, defaced or be destroyed, lost or stolen and, in the absence of notice to the Issuer or the Trustee that any destroyed, lost or stolen Security has been acquired by a bona fide purchaser, the Issuer may in its discretion execute (with -25- the Guaranty endorsed thereon executed by the Guarantor) and the Trustee shall authenticate and make available for delivery, a new Security of the same series and of like tenor, bearing a number or other distinguishing symbol not contemporaneously Outstanding, in exchange and substitution for the mutilated or defaced Security, or in lieu of and substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substitute Security shall furnish to the Issuer, the Guarantor and the Trustee (and any agent of the Issuer, the Guarantor or the Trustee, if requested by the Issuer or the Guarantor) such security or indemnity as may be required by them to indemnify and defend and to save each of them harmless and, in every case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof. Upon the issuance of any substitute Security, the Issuer 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. In case any Security that has matured or is about to mature or has been called for redemption in full shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer in its discretion may instead of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated or defaced Security), if the applicant for such payment shall furnish to the Issuer, the Guarantor and the Trustee (and any agent of the Issuer, the Guarantor or the Trustee, if requested by the Issuer or the Guarantor) such security or indemnity as any of them may require to indemnify and defend and to save each of them harmless, and, in every case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof. Every substituted Security of any series and the Guaranty endorsed thereon issued pursuant to the provisions of this Section by virtue of the fact that any such Security is destroyed, lost or stolen shall constitute an additional contractual obligation of the Issuer and the Guarantor, respectively, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone and shall be entitled to all the benefits of (but shall be subject to all the limitations of rights set forth in) this Indenture equally and proportionately with any and all other Securities of such series duly authenticated and delivered hereunder. All Securities shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or stolen Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender. SECTION 2.14 Cancellation of Securities Paid, etc. All Securities ------------------------------------- surrendered for the purpose of payment, redemption, registration of transfer, conversion or exchange, or for credit against any payment in respect of a sinking or analogous fund, if surrendered to the Issuer, any Security registrar, any paying agent, any conversion agent, or any other agent of the Issuer or any agent of the Trustee, shall be delivered to the Trustee and promptly canceled by it or, if surrendered to the Trustee, shall be promptly canceled by it; and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee -26- shall destroy such canceled Securities and deliver a certificate with respect to such destruction to the Issuer. If the Issuer shall acquire any of the Securities, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation. SECTION 2.15 Temporary Securities. Pending the preparation of -------------------- definitive Securities for any series, the Issuer may execute, and the Trustee shall authenticate and make available for delivery temporary Securities for such series (printed, lithographed, typewritten or otherwise reproduced) (with the Guaranty endorsed thereon executed by the Guarantor). Temporary Securities of any series shall be issuable as registered Securities without coupons, in any authorized denomination, and substantially in the form of the definitive Securities of such series in lieu of which they are issued but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Issuer. Temporary Securities may contain such reference to any provisions of this Indenture as may be appropriate. Every temporary Security shall be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities in lieu of which they are issued. Without unreasonable delay the Issuer shall execute definitive Securities of such series and the Issuer shall furnish (with, in each case, the Guaranty endorsed thereon executed by the Guarantor) such definitive securities and thereupon temporary Securities of such series may be surrendered in exchange therefor without charge at each office or agency to be maintained by the Issuer for that purpose pursuant to Section 3.2, and the Trustee shall authenticate and make available for delivery in exchange for such temporary Securities of such series a like aggregate principal amount of definitive Securities of the same series of authorized denominations having the same interest rate, maturity and redemption and repayment provisions, and bearing interest from the same date as such temporary Securities. Until so exchanged, the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of the same series authenticated and delivered hereunder. SECTION 2.16 CUSIP Numbers. The Issuer in issuing the Securities may ------------- use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to Securityholders; provided that any such notice may state that no representation -------- is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Trustee of any change in the "CUSIP" numbers. SECTION 2.17 Form of Election to Convert. The notice of conversion --------------------------- to be delivered by a Holder to the conversion agent in connection with the conversion of Securities of any series that are convertible into shares of Common Stock shall be in substantially the following form, with such appropriate insertions, omissions, substitutions and other variations as are deemed necessary or appropriate by the Issuer or the Trustee: Notice of Conversion -27- The undersigned Holder of the Securities specified below hereby irrevocably exercises the option to convert such Securities, or the aggregate principal amount thereof specified below, into shares of Common Stock of the Issuer, in accordance with the terms of the Securities and the Indenture dated as of _________________, (the "Indenture") between Newmont Mining Corporation and Citibank, N.A. as Trustee, and directs that if such Holder is electing to receive Common Stock, the Common Stock issuable and deliverable upon conversion be delivered to such Holder unless otherwise indicated below and any check in payment for fractional shares be issued in the name of and delivered to the undersigned unless a different name has been indicated below. All capitalized terms used herein and not defined herein shall have the meanings specified in the Indenture. Dated: ____________________________________ Signature (for Conversion only) Title of Securities: Certificate Number(s) (if applicable): Aggregate Principal Amount Represented:/1/ Principal Amount to be Converted:/2/ If check for fractional Shares to be issued otherwise than to Holder: ________________________________ Print name and address Please print name and address of Holder __________________________ __________________________ /1/ Unless otherwise specified, a Holder will be deemed to be converting the entire principal amount of the Securities delivered. /2/ Certificate registered in the name of the Holder will be issued in the principal amount of the Securities not converted, unless otherwise provided. -28- __________________________ Signature Guarantee: __________________________ __________________________ ARTICLE THREE COVENANTS OF THE ISSUER AND THE GUARANTOR ----------------------------------------- SECTION 3.1 Payment of Principal and Interest. The Issuer covenants --------------------------------- and agrees for the benefit of each series of Securities that it will duly and punctually pay or cause to be paid the principal of and interest, if any, on each of the Securities of such series at the place or places, at the respective times and in the manner provided in such Securities and in a manner consistent with the applicable requirements of The Depository Trust Company. Except as otherwise provided pursuant to Section 2.6 for Securities of any series, each installment of interest on the Securities of any series may be paid by mailing checks for such interest payable to the Person entitled thereto as such addresses shall appear in the Register. SECTION 3.2 Offices for Payments, etc. So long as any of the -------------------------- Securities remain outstanding, the Issuer will designate and maintain in the Borough of Manhattan, The City of New York, for each series: (a) an office or agency where the Securities may be presented for payment or conversion, (b) an office or agency where the Securities may be presented for registration of transfer and for exchange as in this Indenture provided and (c) an office or agency where notices and demands to or upon the Issuer in respect of the Securities or of this Indenture may be served. In addition to such office or offices or agency or agencies, the Issuer may from time to time designate and maintain one or more additional offices or agencies within or outside the Borough of Manhattan, The City of New York, where the Securities of that series may be presented for payment or for registration of transfer or for exchange, and the Issuer may from time to time rescind such designation, as it may deem desirable or expedient. The Issuer will give to the Trustee written notice of the location of any such office or agency and of any change of location thereof. The Issuer hereby designates the New York Location and the Corporate Trust Office as the initial offices to be maintained by it for such purposes. In case the Issuer shall fail to maintain any such office or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made and notices may be served at the Corporate Trust Office and the Issuer appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands. SECTION 3.3 Paying Agents. Whenever the Issuer shall appoint a ------------- paying agent or agents other than the Trustee with respect to the Securities of any series, it will cause each such paying agent to execute and deliver to the Trustee an instrument in which each such paying agent shall agree with the Trustee, subject to the provisions of this Section, (a) that it will hold all sums received by it as such agent for the payment of the principal of or interest, if any, on the Securities of such series (whether such sums have been paid to it by the Issuer or by any other obligor on the Securities of such series) in -29- trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided, (b) that it will give the Trustee notice of any default by the Issuer (or by any other obligor on the Securities of such series) to make any payment of the principal of or interest, if any, on the Securities of such series when the same shall be due and payable, and (c) that, at any time during the continuance of any such default referred to in clause (b) above, upon the written request of the Trustee, it will forthwith pay to the Trustee all sums so held in trust by such paying agent. Whenever the Issuer shall have one or more paying agents with respect to Securities of any series, it will, prior to each due date of the principal of or interest, if any, on the Securities of such series, deposit with a designated paying agent a sum sufficient to pay such principal or interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal or interest, if any, and (unless such paying agent is the Trustee) the Issuer will promptly notify the Trustee of any failure to take such action. If the Issuer shall act as its own paying agent with respect to the Securities of any series, it will, on or before each due date of the principal of or interest, if any, on the Securities of such series, set aside, segregate and hold in trust for the benefit of the Persons entitled to such principal and interest, if any, a sum sufficient to pay such principal or interest, if any, so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided. The Issuer will promptly notify the Trustee of any failure to take such action. Anything in this Section to the contrary notwithstanding, the Issuer may at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust for any such series by the Issuer or any paying agent hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein contained. Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to the provisions of Sections 9.3 and 9.4. SECTION 3.4 Notice of Default. The Issuer and the Guarantor shall ----------------- file with the Trustee written notice of the occurrence of any default or Event of Default within five Business Days of the chairman of the Board of Directors, the president, the executive vice president, any senior vice president, the general counsel, the treasurer or the secretary of the Issuer or the Guarantor becoming aware of any such default or Event of Default. SECTION 3.5 Calculation of Original Issue Discount. The Issuer shall -------------------------------------- file with the Trustee promptly at the end of each calendar year a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on Outstanding Securities as of the end of such year. -30- SECTION 3.6 Reports. Each of the Issuer and the Guarantor shall ------- comply with the provisions of (S) 314(a) of the Trust Indenture Act of 1939 and shall file with the Trustee within 45 days after it files them with the Commission and in any event no later than 60 days after the end of the respective fiscal quarter, copies of its annual report and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may by rules and regulations prescribe) which the Issuer is required to file with the Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended. 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 Issuer's or the Guarantor's compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers' Certificates). SECTION 3.7 Compliance Certificates. (a) On or before April 15 in ----------------------- each year (commencing with the first April 15 which is not less than 60 days following the first date of issuance of Securities of any series under this Indenture), each of the Issuer and the Guarantor will file with the Trustee a brief certificate, signed by its principal executive officer, principal financial officer, or principal accounting officer, stating whether or not the signer has knowledge of any default by the Issuer or the Guarantor, respectively, in the performance or fulfillment of any covenant, agreement, or condition contained in this Indenture, and, if so, specifying each such default of which the signer has knowledge, the nature thereof, and what action, if any, has been taken and is proposed to be taken to cure such default. For purposes of this paragraph, such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture. (b) The Issuer and the Guarantor also shall comply with the other provisions of (S) 314(a) of the Trust Indenture Act of 1939. ARTICLE FOUR REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT ----------------------------------- SECTION 4.1 Events of Default. "Event of Default" with respect to ----------------- Securities of a particular series wherever used herein, means any one of the following events and such other events as may be established with respect to the Securities of such series as contemplated by Section 2.6, continued for the period of time, if any, and after the giving of notice, if any, designated in this Indenture or as may be established with respect to such Securities as contemplated by Section 2.6, as the case may be, unless such event is either inapplicable or is specifically deleted or modified in, or pursuant to, the applicable Resolution or in the supplemental indenture under which such series of Securities is issued, as the case may be, as contemplated by Section 2.6: -31- (a) default in the payment of any installment of interest, if any, upon any of the Securities of such series as and when the same shall become due and payable, and continuance of such default for a period of 30 days; or (b) default in the payment of the principal of any of the Securities of such series as and when the same shall become due and payable either at maturity, upon redemption, by declaration or otherwise; or (c) default in the payment of any sinking fund installment as and when the same shall become due and payable by the terms of the Securities of such series; or (d) failure on the part of the Issuer duly to observe or perform any other of the covenants or agreements on the part of the Issuer in respect of the Securities of such series contained in this Indenture (other than a covenant or agreement in respect of the Securities of such series a default in the performance of which or a breach of which is elsewhere in this Section specifically addressed), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Issuer and the Guarantor by the Trustee or to the Issuer, the Guarantor and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of such 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 (e) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Issuer or the Guarantor in an involuntary case under any applicable Federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Issuer or the Guarantor or for all or substantially all of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 90 consecutive days; or (f) the Issuer or the Guarantor shall commence a voluntary case under any applicable Federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Issuer or the Guarantor, respectively, or for all or substantially all of its property, or make any general assignment for the benefit of creditors; or (g) the Guaranty ceases to be in full force and effect (except as contemplated by the terms thereof) or the Guarantor denies or disaffirms its obligations under the Guaranty. If an Event of Default with respect to any series of Securities at the time Outstanding occurs and is continuing, then, and in each and every such case, unless the principal of all of the Securities of such series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding -32- Securities of such series, by notice in writing to the Issuer and the Guarantor (and to the Trustee if given by Securityholders), may declare the entire principal amount (or, if the Securities of such series are Original Issue Discount Securities, such portion of the principal as may be specified in the terms of such series or if so provided pursuant to Section 2.6 for Securities of any series, such other amount as is specified pursuant thereto) of all of the Securities of such series and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable; provided, however, that the payment of the principal of and premium, if any, and interest, if any, on the Securities of such series shall remain subordinated to the extent provided in Article Eleven hereof, and the Guarantor's obligations under the Guaranty shall remain subordinated to the extent provided in Article Thirteen hereof. The foregoing provisions, however, are subject to the condition that if, at any time after the principal (or, if the Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof or if so provided pursuant to Section 2.6 for Securities of any series, such other amount as is specified pursuant thereto) of the Securities of any series shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, (a) the Issuer or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest, if any, upon all the Securities of such series and the principal of any and all Securities of such series which shall have become due otherwise than by such declaration of acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest, if any, at the Overdue Rate applicable to such series to the date of such payment or deposit), and all amounts payable to the Trustee pursuant to Section 5.5, and (b) any and all Events of Default under the Indenture with respect to such series of Securities other than the non-payment of the principal of such Securities which shall have become due by such declaration of acceleration, shall have been cured, waived or otherwise remedied as provided herein or provision shall have been made therefor to the satisfaction of the Trustee, then and in every such case the Holders of not less than a majority in aggregate principal amount of the Securities of such series then Outstanding, by written notice to the Issuer, the Guarantor and to the Trustee, may rescind and annul such declaration and its consequences with respect to such series, but no such rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon. For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and -33- all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities. If the Securities of any series provide the amount other than the face amount thereof will be payable upon the maturity thereof or a declaration of acceleration of the maturity thereof, for purposes of this Section 4.1 the principal amount of such Securities shall be deemed to be such amount as shall be due and payable upon the acceleration of the maturity thereof, except as may otherwise be provided with respect to such Securities pursuant to Section 2.6. If the Securities of any series provide that an amount other than the face amount thereof will be payable upon the maturity thereof or upon a declaration of acceleration of the maturity thereof, for purposes of this Section 4.1 the principal amount of such Securities shall be deemed to be such amount as shall be due and payable upon the acceleration of the maturity thereof, except as may otherwise be provided with respect to such Securities pursuant to Section 2.6. SECTION 4.2 Payment of Securities on Default; Suit Therefor. The ----------------------------------------------- Issuer covenants that (a) in case a default shall be made in the payment of any installment of interest on any of the Securities of any series as and when such interest shall have become due and payable, and such default shall have continued for a period of 30 days or (b) in case a default shall be made in the payment of the principal of any of the Securities of any series as and when the same shall have become due and payable, whether upon maturity of the Securities of such series or upon redemption or by declaration or otherwise, or (c) in case of a default in the making or satisfaction of any sinking fund payment or analogous obligation when the same becomes due by the terms of the Securities of any series -- then, upon demand of the Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of the Securities of such series the whole amount then due and payable on all Securities of such series for principal and interest, if any, as the case may be (with interest to the date of such payment upon the overdue principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest, if any, at the Overdue Rate applicable to Securities of such series); and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, and any further amounts payable to the Trustee pursuant to Section 5.5. Until such demand is made by the Trustee, the Issuer may pay the principal of and interest, if any, on the Securities of any series to the registered Holders, whether or not the principal of and interest, if any, on the Securities of such series be overdue. In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Issuer or other obligor upon such Securities and collect in the manner provided by law out of the property of the Issuer or other obligor upon such Securities, wherever situated, the moneys adjudged or decreed to be payable. In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Issuer, the Guarantor or any other obligor upon the Securities of any series under Title 11 of the United States Code or any other similar applicable Federal or state law, or in -34- case a receiver, trustee in bankruptcy or similar official shall have been appointed for the property of the Issuer, the Guarantor or such other obligor, or in case of any other similar judicial proceedings relative to the Issuer, the Guarantor or other obligor upon the Securities of any series, or to the creditors or property of the Issuer, the Guarantor or such other obligor, the Trustee, irrespective of whether the principal of any Securities 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 pursuant to the provisions of this Section, shall, subject to the provisions of Article Eleven and Article Thirteen, be entitled and empowered, by intervention in such proceedings or otherwise: (a) to file and prove a claim or claims for the whole amount of principal (or, if the Securities of any series are Original Issue Discount Securities or if the Securities of any series provide that an amount other than the face thereof will or may be payable upon maturity thereof or upon a declaration of acceleration thereof, such amount as may be due and payable with respect to such series pursuant to a declaration in accordance with Section 4.1) and interest, if any, owing and unpaid in respect of the Securities of any series, and, in case of any judicial proceedings, to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for any amounts payable to the Trustee pursuant to Section 5.5) and of the Securityholders allowed in any judicial proceedings relating to the Issuer, the Guarantor or other obligor upon the Securities of any series, or to the creditors or property of the Issuer, the Guarantor or such other obligor, (b) unless prohibited by applicable law and regulations, to vote on behalf of the Holders of the Securities of any series in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or of a person performing similar functions in comparable proceedings, and (c) to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Securityholders and of the Trustee on their behalf (after deduction of costs and expenses of collection, and any further amounts payable to the Trustee pursuant to Section 5.5 and incurred by it up to the date of distribution); and any trustee in bankruptcy, receiver or other similar official is hereby authorized by each of the Securityholders to make payments to the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders, to pay to the Trustee costs and expenses of collection, and any further amounts payable to the Trustee pursuant to Section 5.5 and incurred by it up to the date of distribution. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition affecting the Securities of any series or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar person. -35- All rights of action and of asserting claims under this Indenture, or under the Securities of any series, may be enforced by the Trustee without the possession of any of the Securities of such series or the production thereof on any trial or other proceedings relative thereto, and any such action or proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, shall be for the ratable benefit of the Holders of the Securities in respect of which such action was taken. In any proceedings brought by the Trustee (and also any proceedings in which a declaratory judgment of a court may be sought as to the interpretation or construction of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the Holders of the Securities to which such proceedings relate, and it shall not be necessary to make any Holders of such Securities parties to any such proceedings. SECTION 4.3 Application of Moneys Collected by Trustee. Subject to ------------------------------------------ the provisions of Article Eleven and Article Thirteen hereof, any moneys 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 the case of distribution of such moneys on account of principal or interest, upon presentation of the several Securities in respect of which moneys have been collected and stamping (or otherwise noting) thereon the payment, or issuing Securities in reduced principal amounts in exchange for the presented Securities of like series (or, in the case of Securities of a series issued in more than one Tranche, of the same Tranche) and tenor if only partially paid, or upon surrender thereof if fully paid: FIRST: To the payment of amounts due to the Trustee pursuant to Section 5.5; SECOND: In case the principal of the Outstanding Securities in respect of which moneys have been collected shall not have become and be then due and payable, to the payment of interest, if any, on the Securities in default in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee and to the extent permitted by applicable law) upon the overdue installments of interest at the Overdue Rate applicable to such Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or preference; THIRD: In case the principal of the Outstanding Securities in respect of which moneys have been collected shall have become and shall be then due and payable by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon such Securities for principal and interest, if any, with interest upon the overdue principal, and (to the extent that such interest has been collected by the Trustee and to the extent permitted by applicable law) upon overdue installments of interest, if any, at the Overdue Rate applicable to such Securities; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon such Securities, then to the payment of such principal and interest, if any, without preference or priority of principal over interest, if any, or of interest, if any, over principal, or of any installment of interest, if any, over any other installment of interest, if any, or of any Security over any other Security, ratably to the aggregate of such principal and accrued and unpaid interest, if any; and -36- FOURTH: To the payment of the remainder, if any, to the Issuer or, to the extent that such moneys were provided by the Guarantor, to the Guarantor, or their respective successors and assigns. SECTION 4.4 Proceedings by Trustee. In case an Event of Default ---------------------- hereunder has occurred, has not been waived and is continuing, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law. SECTION 4.5 Restoration of Rights on Abandonment of Proceedings. In --------------------------------------------------- case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee, then and in every such case the Issuer, the Guarantor, the Trustee and the Securityholders shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Issuer, the Guarantor, the Trustee and the Securityholders shall continue as though no such proceedings had been taken. SECTION 4.6 Proceedings by Securityholders. No Holder of any ------------------------------ Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this Indenture, or for the appointment of a trustee in bankruptcy, receiver or other similar official or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of default with respect to Securities of such series and of the continuance thereof, as hereinbefore provided, and unless also the Holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon the Trustee to institute such action, suit or proceedings in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby and the Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have neglected or refused to institute any such action, suit or proceeding and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 4.8 during such 60 day period; it being understood and intended, and being expressly covenanted by the taker and Holder of every Security with every other taker and Holder and the Trustee, that no one or more Holders of any Securities shall have any right in any manner whatever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder of Securities, or to obtain or seek to obtain priority over or preference to any other Holder or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities of the applicable series. For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity. -37- SECTION 4.7 Remedies Cumulative and Continuing. Except as provided in ---------------------------------- Section 4.6, no right or remedy herein conferred upon or reserved to the Trustee or to the Securityholders 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. No delay or omission of the Trustee or of any Securityholder to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence therein; and, subject to Section 4.6, every power and remedy given by this Indenture or by law to the Trustee or to the Securityholders of any or all series, as the case may be, may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders of such series or all series, as the case may be. SECTION 4.8 Control by Securityholders. The Holders of not less than -------------------------- a majority in aggregate principal amount of the Securities of each series affected at the time Outstanding (with each such series voting separately as a class) shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee by this Indenture with respect to Securities of such series. Notwithstanding any of the foregoing, no such direction shall be otherwise than in accordance with law and the provisions of this Indenture and (subject to the requirements of the Trust Indenture Act of 1939) the Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, shall determine that the action or proceeding so directed may not lawfully be taken or would be unjustly prejudicial to the Holders of such Securities not taking part in such direction, or the Holders of the Securities of any other series, or if the Trustee in good faith by its board of directors, the executive committee or a trust committee of directors or responsible officers of the Trustee shall determine that the action or proceedings so directed would involve the Trustee in personal liability. Nothing in this Indenture shall impair the right of the Trustee in its discretion to take any action deemed proper by the Trustee and which is not inconsistent with such direction or directions by Securityholders. SECTION 4.9 Waiver of Past Defaults. Prior to the declaration of the ----------------------- acceleration of the maturity of the Securities of any particular series the Holders of not less than a majority in aggregate principal amount of the Securities of such particular series at the time Outstanding may on behalf of the Holders of all the Securities of such particular series waive any past default or Event of Default with respect to such particular series and its consequences, except a default in respect of a covenant or provision hereof which cannot be modified or amended without the consent of the Holder of each Outstanding Security affected as provided in Section 7.2. In the case of any such waiver, the Issuer, the Guarantor, the Trustee and the Holders of the Securities of each series affected shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. -38- Upon any such waiver, such default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured, and not to have occurred for every purpose of this Indenture. ARTICLE FIVE CONCERNING THE TRUSTEE ---------------------- SECTION 5.1 Reliance on Documents, Opinions, etc.; No Requirement for --------------------------------------------------------- Expenditure of Own Funds. Subject to the provisions of the Trust Indenture Act - ------------------------ of 1939: (a) prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, in the absence of bad faith on the part of the Trustee, upon certificates or opinions 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); (b) any request, direction, order or demand of the Issuer and the Guarantor mentioned herein shall be sufficiently evidenced by an Officers' Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any Resolution may be evidenced to the Trustee by a copy thereof certified by the secretary or an assistant secretary of the Issuer or the Guarantor, as applicable; (c) the Trustee may consult with counsel of its selection and any advice of such counsel or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with such advice or Opinion of Counsel; (d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred therein or thereby; (e) prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, 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, consent, order, bond, direction, note or other paper or document unless requested in writing so to do by the Holders of not less than a majority in aggregate principal amount of the Securities of any series affected then Outstanding; provided that, if the payment within a -------- reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation -39- is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity against such expenses or liabilities as a condition to proceeding; and the reasonable expenses of every such investigation shall be paid by the Issuer or, if paid by the Trustee, shall be promptly repaid by the Issuer upon demand; (f) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys not regularly in its employ and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder; (g) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (h) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in the absence of negligence or bad faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; and (i) the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture. None of the provisions contained in this Indenture shall be construed as requiring the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers. 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 requirements of the Trust Indenture Act of 1939. SECTION 5.2 No Responsibility for Recitals, etc. The recitals ------------------------------------ contained herein and in the Securities, except the Trustee's certificates of authentication, shall be taken as the statements of the Issuer and the Guarantor, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or sufficiency of this Indenture or of the Securities, provided that the Trustee shall not be relieved of its duty to authenticate Securities only as authorized by this Indenture. The Trustee shall not be accountable for the use or application by the Issuer and the Guarantor of any of the Securities or of the proceeds thereof. SECTION 5.3 Trustee and Agents May Hold Securities. The Trustee or -------------------------------------- any agent of the Issuer, the Guarantor or the Trustee, in its individual or any other capacity, may -40- become the owner or pledgee of Securities with the same rights it would have if it were not the Trustee or such agent and, subject to the requirements of the Trust Indenture Act of 1939, may otherwise deal with the Issuer and the Guarantor and receive, collect, hold and retain collections from the Issuer and the Guarantor with the same rights it would have if it were not the Trustee or such agent. SECTION 5.4 Moneys to Be Held in Trust. Subject to the provisions of -------------------------- Sections 9.3 and 9.4, all moneys received by the Trustee or any paying agent, all money and U.S. Government Obligations deposited with the Trustee pursuant to Section 9.8 and all money received by the Trustee in respect of U.S. Government Obligations deposited with the Trustee pursuant to Section 9.8, shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by mandatory provisions of law. Neither the Trustee nor any paying agent shall be under any liability for interest on any moneys received by it hereunder, except such as it may agree in writing with the Issuer to pay thereon. So long as no Event of Default shall have occurred and be continuing, all interest allowed on any such moneys shall be paid from time to time upon the written order of the Issuer signed by one of its officers, who is one of the officers who may sign an Officers' Certificate. SECTION 5.5 Compensation and Expenses of Trustee. The Issuer ------------------------------------ covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, such compensation as shall be agreed to from time to time in writing by the Issuer and the Trustee (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) and, except as otherwise expressly provided, the Issuer will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by or on behalf of it in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its negligence or bad faith. The Issuer also covenants to indemnify the Trustee for, and to hold it harmless against, any and all loss, liability, damage, claim or expense, including taxes (other than taxes based on the income of the Trustee) incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this Indenture or the trusts hereunder and its duties hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the Issuer, the Guarantor, a Holder or any other Person) or liability in the premises. The obligations of the Issuer under this Section to compensate and indemnify the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture. Such additional indebtedness shall be secured by a lien prior to that of 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. When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 4.1(e) or Section 4.1(f), the expenses (including the reasonable fees and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law. -41- SECTION 5.6 Right of Trustee to Rely on Officers' Certificate, etc. ------------------------------------------------------- Subject to the requirements of the Trust Indenture Act of 1939, whenever in the administration of the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action to be taken hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers' Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof. SECTION 5.7 Eligibility of Trustee. The Trustee for each series of ---------------------- Securities hereunder shall at all times be a corporation which complies with the requirements of the Trust Indenture Act of 1939, having a combined capital and surplus of at least U.S.$50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation at any time shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in Section 5.8. SECTION 5.8 Resignation or Removal of Trustee; Appointment of ------------------------------------------------- Successor Trustee. (a) The Trustee, or any trustee or trustees hereafter - ----------------- appointed, may at any time resign with respect to one or more or all series of Securities by giving written notice of resignation to the Issuer and the Guarantor. Upon receiving such notice of resignation, the Issuer shall promptly appoint a successor trustee or trustees with respect to the applicable series by written instrument in duplicate, executed by authority of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee or trustees. If no successor trustee shall have been so appointed with respect to any series and have accepted appointment within 30 days after the mailing of such notice of resignation, the resigning trustee may, at the expense of the Issuer, petition any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, subject to the requirements of the Trust Indenture Act of 1939, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee. (b) In case at any time any of the following shall occur: (i) the Trustee shall cease to be eligible in accordance with the provisions of Section 5.7 with respect to any series of Securities and shall fail to resign after written request therefor by the Issuer or the Guarantor or by any Securityholder; or (ii) the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the -42- 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, the Issuer by Resolution may remove the Trustee with respect to the applicable series of Securities (or all series, if required) and appoint a successor trustee for such series by written instrument, in duplicate, executed by authority of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the requirements of the Trust Indenture Act of 1939, any Securityholder who has been a bona fide Holder of a Security or Securities 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 removal of the Trustee and the appointment of a successor trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee with respect to such series. (c) The Holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding may at any time remove the Trustee with respect to Securities of such series and appoint a successor trustee with respect to the Securities of such series by delivering to the Trustee so removed, to the successor trustee so appointed and to the Issuer and the Guarantor the evidence provided for in Section 6.1 of the action in that regard taken by the Securityholders. If no successor trustee shall have been so appointed with respect to any series and have accepted appointment within 30 days after the mailing of such notice of removal, the Trustee being removed may, at the expense of the Issuer, petition any court of competent jurisdiction for the appointment of a successor trustee. (d) Any resignation or removal of the Trustee with respect to any series and any appointment of a successor trustee with respect to such series pursuant to any of the provisions of this Section 5.8 shall become effective upon acceptance of appointment by the successor trustee as provided in Section 5.9. SECTION 5.9 Acceptance of Appointment by Successor Trustee. Any ---------------------------------------------- successor trustee appointed as provided in Section 5.8 shall execute, acknowledge and deliver to the Issuer, the Guarantor and its predecessor Trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor Trustee with respect to all or any applicable series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee for such series hereunder; but, nevertheless, on the written request of the Issuer, the Guarantor or the successor trustee, upon payment (or due provision therefor) of any amounts then due it pursuant to Section 5.5, the predecessor Trustee ceasing to act shall, subject to Section 9.4, pay over to the successor trustee all moneys at the time held by it hereunder and shall execute and deliver an instrument transferring to such successor trustee all such rights, powers, duties and obligations. Upon request of any such successor trustee, the Issuer shall execute any and all instruments in -43- writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 5.5. If a successor trustee is appointed with respect to the Securities of one or more (but not all) series, the Issuer, the Guarantor, the predecessor Trustee and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such trustee. No successor trustee with respect to any series of Securities shall accept appointment as provided in this Section 5.9 unless at the time of such acceptance such successor trustee shall, with respect to such series, be qualified under the provisions of the Trust Indenture Act of 1939 and eligible under the provisions of Section 5.7. Upon acceptance of appointment by any successor trustee as provided in this Section 5.9, the Issuer shall mail notice thereof to the Holders of Securities of any series for which such successor trustee is acting as trustee at their last addresses as they shall appear in the Register. If the Issuer fails to mail such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the Issuer's expense. SECTION 5.10 Merger, Conversion, Consolidation or Succession to -------------------------------------------------- Business of Trustee. 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, that such corporation shall be qualified under the provisions of the - -------- Trust Indenture Act of 1939 and eligible under the provisions of Section 5.7, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture any of the Securities of any series shall have been authenticated but not delivered, any such successor to the Trustee by merger, conversion or consolidation may adopt the certificate of authentication of any predecessor Trustee and deliver such Securities so authenticated; and, in case at that time any of the Securities of any series shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of -44- such successor to the Trustee or, if such successor to the Trustee is a successor by merger, conversion or consolidation, in the name of any predecessor hereunder; and in all such cases such certificate shall have the full force which the certificate of the Trustee shall have as provided anywhere in the Securities of such series or in this Indenture. SECTION 5.11 Reports by Trustee to Securityholders. Within 60 days ------------------------------------- after December 31 in each year, beginning with the December 31 following the date of this Indenture, the Trustee shall mail to the Securityholders a brief report dated as of such reporting date in compliance with (S) 313(a) of the Trust Indenture Act of 1939 if such report is required by Section (S) 313(a). The Trustee also shall comply with (S) 313(b) of the Trust Indenture Act of 1939. The Trustee shall also transmit by mail all reports as required by (S) 313(c) of the Trust Indenture Act of 1939. The Issuer shall promptly notify the Trustee when the Securities are listed on any stock exchange and of any delisting thereof. ARTICLE SIX CONCERNING THE SECURITYHOLDERS ------------------------------ SECTION 6.1 Action by Securityholders. Whenever in this Indenture it ------------------------- is provided that the Holders of a specified percentage in aggregate principal amount of the Securities of any or all series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action) the fact that at the time of taking any such action the Holders of such specified percentage have joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by such Securityholders in person or by agent or proxy appointed in writing, or (b) by the record of such Holders of Securities voting in favor thereof at any meeting of such Securityholders duly called and held in accordance with the provisions of this Article, or (c) by a combination of such instrument or instruments and any such record of such a meeting of such Securityholders; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments and/or such record are delivered to the Trustee. Proof of execution of any instrument or of a writing appointing any such agent or proxy shall be sufficient for any purpose of this Indenture and (subject to the requirements of the Trust Indenture Act of 1939 and Section 5.1) conclusive in favor of the Trustee, the Issuer and the Guarantor, if made in the manner provided in this Article. In determining whether the Holders of the requisite principal amount of Outstanding Securities of any or all series have taken any action (including the making of any demand or request), the giving of any notice, consent or waiver (or the taking of any other action) hereunder and in determining voting rights of any Holder of a Security hereunder (i) the principal amount of Original Issue Discount Securities that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 4.1, (ii) in the case of Securities which provide that an amount other than the face amount thereof will or may be payable upon the maturity thereof or upon a declaration of acceleration of the maturity thereof, the principal amount of such Securities that shall be deemed to be -45- Outstanding for such purposes shall be the amount that would be due and payable in respect of such Securities as of the date of such determination upon a declaration of acceleration of the maturity thereof pursuant to Section 4.1, and (iii) the principal amount of any Security, the principal amount of which is denominated in a currency other than U.S. dollars or in units of currencies or in a composite currency (the "Specified Currency") shall be deemed to be that amount of U.S. dollars which could have been obtained by the face amount of such Specified Currency at the Market Exchange Rate. For purposes of this Section 6.1, "Market Exchange Rate" means, unless otherwise specified for a Specified Currency with respect to any series of Securities pursuant to Section 2.6, the noon U.S. dollar buying rate in New York City for cable transfers of the Specified Currency published by the Federal Reserve Bank of New York; All decisions and determinations of the Trustee regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall be in its sole discretion and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all purposes and irrevocably binding upon the Issuer, the Guarantor and all Securityholders. If the Issuer shall solicit from the Securityholders any demand, request, notice, consent, waiver or the taking of any other action (other than in accordance with the Securityholders voting provisions set forth in Sections 6.6 through 6.14 of this Article), the Issuer may, at its option, by a Resolution, fix in advance a record date for the determination of Holders entitled to give such demand, request, notice, consent or waiver or to take such other action, but the Issuer shall have no obligation to do so. If such a record date is fixed, such demand, request, notice, consent, waiver or such other action may be given before or after the record date, but only the Securityholders of record at the close of business on the record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite percentage of Securities Outstanding have authorized or agreed or consented to such demand, request, notice, consent, waiver or taking of any other action, and for that purpose the Securities Outstanding shall be computed as of the record date; provided, that no such demand, request, notice, consent, -------- waiver or taking of any other action by the Holders on the record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date. SECTION 6.2 Proof of Execution by Securityholders. Subject to the ------------------------------------- requirements of the Trust Indenture Act of 1939 and Sections 5.1 and 6.11, proof of the execution of any instrument by a Securityholder or his agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The ownership of Securities shall be proved by the Register or by a certificate of the Person designated by the Issuer to keep the Register and to act as repository in accordance with the provisions of Section 2.12. The record of any Securityholders' meeting shall be proved in the manner provided in Section 6.12. SECTION 6.3 Holders to Be Treated as Owners. The Issuer, the ------------------------------- Guarantor, the Trustee and any agent of the Issuer, the Guarantor or the Trustee may deem and treat the Person in whose name any Security shall be registered in the Register for such series as the absolute -46- owner of such Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of and, subject to the provisions of this Indenture, interest, if any, on such Security and for all other purposes; and none of the Issuer, the Guarantor, the Trustee or any agent of the Issuer, the Guarantor or the Trustee shall be affected by any notice to the contrary. All such payments so made to any such Person, or upon his order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Security. SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding. In ------------------------------------------------- determining whether the Holders of the requisite aggregate principal amount of Outstanding Securities of any or all series have concurred in any demand, request, notice, direction, consent or waiver under this Indenture, Securities which are owned by the Issuer, the Guarantor or any other obligor on the Securities with respect to which such determination is being made or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer, the Guarantor or any other obligor on the Securities with respect to which such determination is being made shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such demand, request, notice, direction, consent or waiver only Securities which a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding for purposes of this Section 6.4 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 Issuer, the Guarantor or any other obligor upon the Securities or any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer, the Guarantor or any other obligor on the Securities. In case of a dispute as to such right, the advice of counsel shall be full protection in respect of any decision made by the Trustee in accordance with such advice. Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an Officers' Certificate listing and identifying all Securities, if any, known by the Issuer to be owned or held by or for the account of any of the above-described persons; and, subject to the requirements of the Trust Indenture Act of 1939 and Section 5.1, the Trustee shall, in the absence of manifest error, accept such Officers' Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are Outstanding for the purpose of any such determination. SECTION 6.5 Right of Revocation of Action Taken. At any time prior ----------------------------------- to (but not after) the evidencing to the Trustee, as provided in Section 6.1, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action, any Holder of a Security the serial number or other distinguishing symbol of which is shown by the evidence to be included among the serial numbers or other distinguishing symbols of the Securities the Holders of which have consented to such action may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Article, revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Securities issued in exchange or substitution therefor, irrespective of whether -47- or not any notation in regard thereto is made upon any such Security. Any action taken by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action shall be conclusively binding upon the Issuer, the Guarantor, the Trustee and the Holders of all the Securities affected by such action. SECTION 6.6 Securityholders' Meetings; Purposes. A meeting of ----------------------------------- Holders of Securities of any series or all series, as the case may be, may be called at any time and from time to time pursuant to the provisions of this Article Six for any of the following purposes: (1) to give any notice to the Issuer, the Guarantor or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of any default or Event of Default hereunder and its consequences, or to take any other action authorized to be taken by Securityholders pursuant to any of the provisions of Article Four; (2) to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article Five; (3) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 7.2; or (4) to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Securities of any series or all series, as the case may be, under any other provision of this Indenture or under applicable law. SECTION 6.7 Call of Meetings by Trustee. The Trustee may at any time --------------------------- call a meeting of Holders of Securities of any series or all series, as the case may be, to take any action specified in Section 6.6, to be held at such time and at such place in the Borough of Manhattan, The City of New York, as the Trustee shall determine. Notice of every meeting of the Holders of Securities of any series or all series, as the case may be, 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 mailed to Holders of Outstanding Securities of each series affected at their addresses as they shall appear in the Register as of a date not more than 15 days prior to the mailing of such notice. Such notice shall be mailed not less than 20 nor more than 90 days prior to the date fixed for the meeting. Any meeting of the Holders of Securities of any series or all series, as the case may be, shall be valid without notice if the Holders of all Securities of any series then Outstanding are present in person or by proxy, or, if notice is waived before or after the meeting by the Holders of all Securities of any series outstanding, and if the Issuer, the Guarantor and the Trustee are either present by duly authorized representatives or have, before or after the meeting waived notice. SECTION 6.8 Call of Meetings by Issuer or Securityholders. In case --------------------------------------------- at any time the Issuer pursuant to a Resolution, or the Holders of at least 10% in aggregate principal amount of the Securities then Outstanding of any or all series, as the case may be, shall have requested the -48- Trustee to call a meeting of the Holders of Securities of such series or all series, as the case may be, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within 20 days after receipt of such request, then the Issuer or such Securityholders, in the amount specified above, may determine the time and the place in said Borough of Manhattan for such meeting and may call such meeting to take any action authorized in Section 6.6, by mailing notice thereof as provided in Section 6.7. SECTION 6.9 Qualifications for Voting. To be entitled to vote at any ------------------------- meeting of Securityholders a Person shall (a) be a Holder of one or more Securities with respect to which such meeting is being held or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more such Securities. The only Persons who shall be entitled to be present or to speak at any meeting of Securityholders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Issuer and the Guarantor and their respective counsel. SECTION 6.10 Quorum; Adjourned Meetings. The Persons entitled to vote -------------------------- a majority in aggregate principal amount of the Securities of the relevant series at the time Outstanding shall constitute a quorum for the transaction of all business specified in Section 6.6. No business shall be transacted in the absence of a quorum (determined as provided in this Section 6.10). In the absence of a quorum within 30 minutes after the time appointed for any such meeting, the meeting shall, if convened at the request of the Holders of Securities (as provided in Section 6.8), be dissolved. In any other case the meeting shall be adjourned for a period of not less than ten days as determined by the chairman of the meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting shall be further adjourned for a period of not less than ten days as determined by the chairman of the meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 6.7, except that such notice must be mailed not less than five days prior to the date on which the meeting is scheduled to be reconvened. Any Holder of a Security who has executed in person or by proxy and delivered to the Trustee an instrument in writing complying with the provisions of Section 6.2 shall be deemed to be present for the purposes of determining a quorum and be deemed to have voted; provided, that such Holder of a Security -------- shall be considered as present or voting only with respect to the matters covered by such instrument in writing. SECTION 6.11 Regulations. Notwithstanding any other provisions of this ----------- Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Securityholders, in regard to proof of the holding of Securities 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 determine. The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Issuer or by Securityholders as provided in Section 6.8, in which case the Issuer or the Securityholders calling the meeting, as the case may -49- be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by the vote of the Holders of a majority of the principal amount of the Outstanding Securities present at the meeting. Subject to the provisions of Section 6.4, at any meeting each Holder of Securities with respect to which such meeting is being held or proxy shall be entitled to one vote for each U.S.$1,000 (or if any Securities are denominated in a currency other than U.S. dollars or in units of currencies or in a composite currency, the equivalent of U.S.$1,000 in the applicable currency, units of currencies or composite currency calculated using the market Exchange Rate) principal amount (or in the case of Original Issue Discount Securities or, in the case of Securities which provide that an amount other than the face amount thereof will or may be payable upon the maturity thereof or upon a declaration of acceleration of the maturity thereof, such principal amount to be determined as provided in the definition of "Outstanding" in Section 1.1) of such Securities held or represented by him; provided, however, that no vote -------- ------- shall be cast or counted at any meeting in respect of any such 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 other than by virtue of such Securities held by him or instruments in writing as aforesaid duly designating him as the Person to vote on behalf of other such Securityholders. Any meeting of Holders of Securities with respect to which a meeting was duly called pursuant to the provisions of Section 6.7 or 6.8 may be adjourned from time to time by the Holders of a majority of the principal amount of the Outstanding Securities present, whether or not constituting a quorum, and the meeting may be held as so adjourned without further notice. SECTION 6.12 Voting. The vote upon any resolution submitted to any ------ meeting of Holders of Securities with respect to which such meeting is being held shall be by written ballots on which shall be subscribed the signatures of such Holders of Securities or of their representatives by proxy and the principal amount (in the case of Original Issue Discount Securities or, in the case of Securities which provide that an amount other than the face amount thereof will or may be payable upon the maturity thereof or upon a declaration of acceleration of the maturity thereof, such principal amount to be determined as provided in the definition of "Outstanding" in Section 1.1) and number or numbers or other distinguishing symbol or symbols of such Securities 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 in duplicate of the proceedings of each meeting of Securityholders 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 facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided in Section 6.7. The record shall show the principal amount of the Securities (in the case of Original Issue Discount Securities or, in the case of Securities which provide that an amount other than the face amount thereof will or may be payable upon the maturity thereof or upon a declaration of acceleration of the maturity thereof, such principal amount to be determined as provided in the definition of "Outstanding" in Section 1.1) voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the -50- meeting and one of the duplicates shall be delivered to the Issuer and the other 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. SECTION 6.13 No Delay of Rights by Meeting. Nothing in this Article ----------------------------- Six shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Securityholders of any or all series or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Securityholders of any or all such series under any of the provisions of this Indenture or of the Securities. SECTION 6.14 Written Consent in Lieu of Meeting. The written ---------------------------------- authorization or consent by the Holders of the requisite percentage in aggregate principal amount of Outstanding Securities of one or more series herein provided, entitled to vote at any such meeting, evidenced as provided in Section 6.1 and filed with the Trustee, shall be effective in lieu of a meeting of the Holders of Securities of such series, with respect to any matter provided for in this Article Six. ARTICLE SEVEN SUPPLEMENTAL INDENTURES ----------------------- SECTION 7.1 Supplemental Indentures Without Consent of ------------------------------------------ Securityholders. The Issuer and the Guarantor, each when authorized by, or - --------------- pursuant to a Resolution, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act of 1939 as in force at the date of the execution thereof) for one or more of the following purposes: (a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities of one or more series any property or assets; (b) to evidence the succession of another entity to the Issuer or the Guarantor, or successive successions, and the assumption by the successor entity of the covenants, agreements and obligations of the Issuer or the Guarantor, as the case may be, pursuant to Article Eight; (c) to add to the covenants of the Issuer or the Guarantor such further covenants, restrictions, conditions or provisions as the Issuer, the Guarantor and the Trustee shall consider to be for the benefit of the Holders of one or more series of Securities (and if such covenants, restrictions, conditions or provisions are to be for the benefit of less than all series of Securities, stating that such covenants, restrictions, conditions or provisions are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Issuer or the Guarantor; -51- (d) to add additional Events of Default and to provide with respect thereto for any particular periods of grace after default (which may be shorter or longer than that allowed in the case of other defaults) or for immediate enforcement upon such default or for any limitation of the remedies available to the Trustee upon such default; (e) to provide for the issuance under this Indenture of Securities in bearer form (including Securities registrable as to principal only) with or without interest coupons and to provide for exchangeability of such Securities with the Securities of the same series or Tranche, as the case may be, issued hereunder in fully registered form and to make all appropriate changes for such purpose; (f) to cure any ambiguity or to correct or supplement any provision contained herein, in the Securities of any series or in the Guaranty or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture; or to change or eliminate any provision or to make such other provisions in regard to matters or questions arising under this Indenture or under any supplemental indenture as the Issuer or the Guarantor may deem necessary or desirable and which shall not adversely affect the interests of the Holders of the Securities at the time Outstanding; (g) to establish the form or terms of Securities of any series as permitted by Sections 2.1 and 2.6; (h) to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Section 5.9; (i) to add to or change any provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities convertible into other securities; or (j) to effectuate the provisions of Section 12.5(b). Upon the request of the Issuer and the Guarantor, accompanied by copies of Resolutions authorizing the execution of any such supplemental indenture, certified by the secretaries or assistant secretaries of each of the Issuer and the Guarantor, the Trustee shall join with the Issuer and the Guarantor in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be obligated to (but may in its discretion) enter into any such supplemental indenture which adversely affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. -52- Any supplemental indenture authorized by the provisions of this Section may be executed by the Issuer, the Guarantor and the Trustee without the consent of the Holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 7.2. SECTION 7.2 Supplemental Indentures With Consent of Securityholders. ------------------------------------------------------- With the consent (evidenced as provided in Article Six) of the Holders of not less than a majority in aggregate principal amount of the Securities of all series affected by such supplemental indenture (all such series voting as a single class) at the time Outstanding, the Issuer and the Guarantor, each when authorized by, or pursuant to a Resolution, and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act of 1939 as in force at the date of execution thereof) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights and obligations of the Issuer or the Guarantor or the rights of the Holders of the Securities of all such series; provided, that no such -------- supplemental indenture shall (a) extend the fixed maturity of any Security, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any amount payable on redemption or reduce the Overdue Rate thereof or make the principal thereof or interest thereon payable in any coin or currency other than that provided in the Security or reduce the amount of the principal of an Original Issue Discount Security (or a Security that provides that an amount other than the face amount thereof will or may be payable upon a declaration of acceleration of the maturity thereof) that would be due and payable upon an acceleration of the maturity thereof pursuant to Section 4.1 or the amount thereof provable in bankruptcy pursuant to Section 4.2, or impair, if the Securities provide therefor, any right of repayment at the option of the Securityholder, or impair the right of any holders of Securities of a series entitled to the conversion rights set forth in Article Twelve to receive securities upon the exercise of such conversion rights, without the consent of the Holder of each Security so affected, or (b) reduce the aforesaid percentage of Securities the consent of the Holders of which is required for any such supplemental indenture, without the consent of the Holders of each Security so affected or (c) modify any of the provisions of Article Eleven or Article Thirteen in a manner adverse to the Holders of the Securities. 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 Securityholders of such series with respect to such covenant or provision, shall be deemed not to affect the rights under this Indenture of the Securityholders of any other series. The preceding sentence shall not, however, raise any inference as to whether or not a particular series is affected by any supplemental indenture not referred to in such sentence. Upon the request of the Issuer and the Guarantor, accompanied by copies of Resolutions authorizing the execution of any such supplemental indenture certified by the secretaries or assistant secretaries of each of the Issuer and the Guarantor, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid and other documents, if any, required by Section 6.1, the Trustee shall join with the Issuer and the Guarantor in the execution of such supplemental indenture unless such supplemental indenture adversely affects the -53- Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture. It shall not be necessary for the consent of the Securityholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. Promptly after the execution by the Issuer, the Guarantor and the Trustee of any supplemental indenture pursuant to the provisions of this Section 7.2, the Issuer shall mail a notice thereof to the Holders of Securities of each series affected thereby at their addresses as they shall appear in the Register, setting forth in general terms the substance of such supplemental indenture. Any failure of the Issuer to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture. SECTION 7.3 Effect of Supplemental Indenture. Upon the execution of -------------------------------- any supplemental indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Issuer, the Guarantor and the Holders of Securities of each series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes. SECTION 7.4 Certain Documents to Be Given to Trustee. The Trustee, ---------------------------------------- subject to the requirements of the Trust Indenture Act of 1939 and Section 5.1, may receive an Officers' Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article Seven complies with the requirements of this Article Seven. SECTION 7.5 Notation on Securities. Securities of any series ---------------------- authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article Seven may bear a notation in form approved by the Trustee for such series as to any matter provided for by such supplemental indenture or as to any action taken at any such meeting. If the Issuer or the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Issuer, to any modification of this Indenture contained in any such supplemental indenture may be prepared and executed (with the Guaranty endorsed thereon executed by the Guarantor) by the Issuer, authenticated by the Trustee and delivered in exchange for the Securities of such series then Outstanding. ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE ------------------------------------------------- SECTION 8.1 Issuer and Guarantor May Consolidate, etc., on Certain ------------------------------------------------------ Terms. (a) Nothing contained in this Indenture or in any of the Securities - ----- shall prevent any consolidation or merger of the Issuer with or into any other entity or entities (whether or not affiliated with the Issuer), or successive consolidations or mergers in which the Issuer or its successor or successors -54- shall be a party or parties, or shall prevent any sale, conveyance or lease of all or substantially all the property of the Issuer, to any other entity (whether or not affiliated with the Issuer) authorized to acquire and operate the same; provided, however, and the Issuer hereby covenants and agrees, that -------- ------- upon any such consolidation, merger, sale, conveyance or lease, (i) the due and punctual payment of the principal of and interest, if any, on all of the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by the Issuer, shall be expressly assumed, by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by the entity (if other than the Issuer) formed by such consolidation, or into which the Issuer shall have been merged, or by the entity which shall have acquired or leased such property and (ii) the Issuer or such successor entity, as the case may be, shall not, immediately after such merger or consolidation, or such sale, conveyance or lease, be in default in the performance of any such covenant or condition. (b) Nothing contained in this Indenture or in any of the Securities or in the Guaranty shall prevent any consolidation or merger of the Guarantor with or into any other entity or entities (whether or not affiliated with the Guarantor), or successive consolidations or mergers in which the Guarantor or the successor or successors shall be a party or parties, or shall prevent any sale, conveyance or lease of all or substantially all the property of the Guarantor to any other entity (whether or not affiliated with the Guarantor) authorized to acquire and operate the same; provided, however, and the Guarantor -------- ------- hereby covenants and agrees, that upon any such consolidation, merger, sale, conveyance or lease (i) the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by the Guarantor and under the Guaranty shall be expressly assumed, by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by the entity (if other than the Guarantor) formed by such consolidation, or into which the Guarantor shall have been merged, or by the entity which shall have acquired or leased such property and (ii) the Guarantor or such successor entity, as the case may be, shall not, immediately after such merger or consolidation, or such sale, conveyance or lease, be in default in the performance of any such covenant or condition. SECTION 8.2 Successor Entity to Be Substituted. (a) In case of any ---------------------------------- consolidation, merger, sale, conveyance or lease referred to in Section 8.l and upon the assumption by the successor entity, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of, in the case of Section 8.1(a) the due and punctual payment of the principal of and interest, if any, on all of the Securities and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Issuer or, in the case of Section 8.1(b), the due and punctual performance of all covenants and conditions of this Indenture be performed by the Guarantor and under the Guaranty, such successor entity shall succeed to and be substituted for the Issuer or the Guarantor, as applicable, with the same effect as if it had been named herein as the party of the first part. In case of any such consolidation, merger, sale, conveyance or lease, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued or in the Guaranty endorsed thereon as may be appropriate. -55- (b) In the case of a successor entity to the Issuer, such successor entity thereupon may cause to be signed, and may issue either in its own name or in the name of Newmont Mining Corporation any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Issuer and delivered to the Trustee; and, upon the order of such successor entity instead of the Issuer and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered by the officers of the Issuer to the Trustee for authentication, and any Securities which such successor entity thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof. In the event of any such sale or conveyance, but not any such lease, the Issuer or any successor entity which shall theretofore have become such in the manner described in this Article Eight shall be discharged from all obligations and covenants under this Indenture and the Securities and may be dissolved and liquidated. (c) In the case of a successor entity to the Guarantor, such successor entity thereupon may cause to be signed, and may issue in its own name or in the name of Newmont Gold Company the Guaranty with respect to any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Guarantor and delivered to the Trustee; and, upon the order of such successor entity instead of the Guarantor and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities on which the Guaranty is endorsed which previously shall have been signed and delivered by an officer of the Guarantor to the Trustee for authentication, and any Securities on which the Guaranty is endorsed which such successor entity thereafter shall cause to be signed and delivered to the Trustee for that purpose. Any such Guaranty with respect to Securities of any series shall in all respects have the same legal rank and benefit under this Indenture as the Guaranty with respect to Securities of the same series theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof. In the event of any such sale or conveyance, referred to in Section 8.1, but not any lease referred to in such Section, the Guarantor or any successor entity which shall theretofore have become such in the manner described in this Article Eight shall be discharged from all obligations and covenants under this Indenture and the Guaranty and may be dissolved and liquidated. SECTION 8.3 Opinion of Counsel and Officers' Certificate to Be Given -------------------------------------------------------- to Trustee. The Trustee, subject to the requirements of the Trust Indenture Act - ---------- of 1939 and Section 5.1, may receive an Opinion of Counsel and Officers' Certificate as conclusive evidence that any such consolidation, merger, sale, conveyance or lease and any such assumption complies with the provisions of this Article Eight. -56- ARTICLE NINE SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS ------------------------------ SECTION 9.1 Satisfaction and Discharge of Indenture. If at any time --------------------------------------- (a) the Issuer or the Guarantor shall have paid or caused to be paid the principal of and interest on all the Securities of any particular series Outstanding hereunder (other than Securities which have been mutilated, defaced, destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.13 or in lieu of or in substitution for which other Securities shall have been authenticated and delivered) as and when the same shall have become due and payable, or (b) the Issuer shall have delivered to the Trustee for cancellation all Securities of such series theretofore authenticated (other than any Securities of such series which shall have been mutilated, defaced, destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.13 or in lieu of or in substitution for which other Securities shall have been authenticated and delivered) and not theretofore cancelled, or (c)(i) all the Securities of such series not theretofore cancelled or delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and (ii) the Issuer or the Guarantor shall have irrevocably deposited or caused to be deposited with the Trustee as trust funds the entire amount in cash (other than moneys repaid by the Trustee or any paying agent to the Issuer or the Guarantor in accordance with Section 9.4) sufficient to pay at maturity or upon redemption all Securities of such series not theretofore delivered to the Trustee for cancellation (other than any Securities of such series which shall have been mutilated, defaced, destroyed, lost or stolen which have been replaced or paid as provided in Section 2.13 or in lieu of or in substitution for which other Securities shall have been authenticated and delivered), including principal and interest, if any, due or to become due to such date of maturity or the date fixed for redemption, as the case may be, and if, in any such case, the Issuer or the Guarantor shall also pay or cause to be paid all other sums payable hereunder by the Issuer or the Guarantor with respect to Securities of such series, then this Indenture shall cease to be of further effect with respect to Securities of such series (except as to (i) rights of registration of transfer and exchange, and the Issuer's right of optional redemption, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of Securityholders to receive payments of principal thereof and interest, if any, thereon, and remaining rights of the Securityholders to receive mandatory sinking fund payments, if any, (iv) the rights, obligations and immunities of the Trustee hereunder, including its rights under Section 5.5, (v) the rights of the Securityholders of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them and (vi) any rights, if any, of Securityholders to convert such Securities), and the Trustee, on demand of the Issuer accompanied by an Officers' Certificate and an Opinion of Counsel and at the cost and expense of the Issuer, shall execute proper instruments acknowledging such satisfaction of and discharging this Indenture with respect to such series. SECTION 9.2 Application by Trustee of Funds Deposited for Payment of -------------------------------------------------------- Securities. Subject to Section 9.4, all moneys deposited with the Trustee - ---------- pursuant to Section 9.1 shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Issuer acting as its own paying agent), to the Holders of the particular Securities of -57- such series for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest, if any. All money deposited with the Trustee pursuant to Section 9.1 (and held by it or any paying agent) for the payment of Securities subsequently converted into Common Stock shall be returned to the Issuer upon its written request. SECTION 9.3 Repayment of Moneys Held by Paying Agent. In connection ---------------------------------------- with the satisfaction and discharge of this Indenture with respect to Securities of any series, all moneys then held by any paying agent, other than the Trustee, under the provisions of this Indenture with respect to such series of Securities shall, upon demand of the Issuer or the Guarantor, be repaid to the Issuer or, to the extent that such moneys were deposited by it, the Guarantor, or paid to the Trustee, and thereupon such paying agent shall be released from all further liability with respect to such moneys. SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent ------------------------------------------------- Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or - ----------------------- any paying agent for the payment of the principal of or interest, if any, on any Security of any series and not applied but remaining unclaimed for two years after the date upon which such principal or interest, as the case may be, shall have become due and payable, shall, upon the written request of the Issuer or the Guarantor and unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Issuer or, to the extent that such moneys were deposited by it, the Guarantor by the Trustee for such series or such paying agent, and the Holder of such Security of such series shall, unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look only to the Issuer for any payment which such Holder may be entitled to collect. SECTION 9.5 Option to Effect Defeasance . Each of the Issuer or the ---------------------------- Guarantor may at its option by or pursuant to a Resolution, at any time, with respect to the Securities of any series, elect to have Section 9.6 be applied to the Outstanding Securities of such series upon compliance with the conditions set forth below. SECTION 9.6 Defeasance and Discharge. Upon the Issuer's or the ------------------------ Guarantor's exercise of its option to utilize the provisions of this Section 9.6 and upon compliance with Section 9.7, the Issuer and the Guarantor shall be deemed to have been discharged from their obligations with respect to the Outstanding Securities of such series and the Guarantor shall be deemed to have been discharged from its obligations under the Guaranty with respect to such Outstanding Securities, in each case on the date the conditions set forth below are satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means that the Issuer shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned and the Guarantor shall be deemed to have discharged all of its obligations under the Guaranty (and the Trustee, at the expense of the Issuer, 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 Outstanding Securities of such series to receive, solely from the trust fund described in Section 9.8 and as more fully set forth in such Section, payments in respect of the principal of and interest -58- on such Securities when such payments are due, (B) the obligations of the Issuer and the Guarantor with respect to such Securities under Sections 2.12, 2.13, 2.15, 3.2 and 3.3, (C) the rights, powers, trusts, duties, and immunities of the Trustee under Sections 2.13, 2.14, 2.15, 4.3, 5.5 and 9.4, and otherwise the duty of the Trustee to authenticate Securities of such series issued on registration of transfer or exchange, (D) the conversion rights, if any, of Holders of Outstanding Securities of such series and the Issuer's obligations, if any, with respect thereto under Article Twelve, and (E) this Article Nine. SECTION 9.7 Conditions to Defeasance. The following shall be the ------------------------ conditions to application of Section 9.6 to the Outstanding Securities of such series: (a) The Issuer or the Guarantor, as the case may be, shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 5.7 who shall agree to comply with the provisions of this Article Nine 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, (A) money in an amount, or (B) U.S. Government Obligations 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, money in an amount, or (C) a combination thereof, 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 each installment of principal of and interest on the Outstanding Securities of such series 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 the Outstanding Securities of such series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities. For this purpose, "U.S. Government Obligations" means securities that are (x) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (y) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any such U.S. Government Obligation or a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the account of the Holder of such 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 U.S. Government Obligation or the specific payment of principal of or interest on the U.S. Government Obligation evidenced by such depository receipt. -59- (b) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit. (c) Such defeasance shall not cause the Trustee for the Securities of such series to have a conflicting interest for purposes of the Trust Indenture Act of 1939 with respect to any Securities of the Issuer. (d) Such defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Issuer or the Guarantor is a party or by which it is bound. (e) Such defeasance shall not cause any Securities of such series then listed on any registered national securities exchange under the Exchange Act, to be delisted. (f) The Issuer or the Guarantor shall have delivered to the Trustee an Opinion of Counsel (who may be counsel to the Issuer or the Guarantor) stating that (x) the Issuer or the Guarantor has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of such defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred. (g) The Issuer or the Guarantor shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance under Section 9.6 have been complied with. SECTION 9.8 Deposited Money and U.S. Government Obligations to Be ----------------------------------------------------- Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of - --------------------------------------------- Section 9.4, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee -- collectively, for purposes of this Section 9.8, the "Trustee") pursuant to Section 9.7 in respect of the Outstanding Securities of such series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture (including the subordination provisions thereof and hereof), to the payment, either directly or through any paying agent (including the Issuer acting as its own paying agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and interest, but such money need not be segregated from other funds except to the extent required by law. The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 9.8 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 the Outstanding Securities of such series. -60- Anything in this Article Nine to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer or the Guarantor, as applicable, from time to time upon the Issuer's or the Guarantor's written request any money or U.S. Government Obligations held by it as provided in Section 9.7 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 an equivalent defeasance. ARTICLE TEN REDEMPTION OF SECURITIES AND SINKING FUNDS ------------------------------------------ SECTION 10.1 Applicability of Article. The provisions of this ------------------------ Article shall be applicable to the Securities of any series which are redeemable before their maturity and to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.6 for Securities of such series. SECTION 10.2 Notice of Redemption; Selection of Securities. In case --------------------------------------------- the Issuer shall desire to exercise any right to redeem all or any part of the Securities of any series in accordance with their terms, the Issuer shall fix a date for redemption and shall notify the Trustee in writing, at least 45 days before such redemption date. The Issuer, or at the request and at the expense of the Issuer, the Trustee, shall mail a notice of such redemption, at least 30 days and not more than 60 days prior to the date fixed for redemption, to the Holders of Securities of such series so to be redeemed in whole or in part at their last addresses as they shall appear in the Register. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice. Failure to give notice by mail, or any defect in the notice, to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series. The notice of redemption to each such Holder shall specify the CUSIP number of the Securities, if any, the date fixed for redemption, the redemption price, the place or places of payment, if the Securities of such series are convertible at the option of the Holder into shares of Common Stock, the Conversion Price, the place or places of conversion, that Securities called for redemption may be converted at any time before the close of business on the third Business Day prior to the date fixed for redemption, or on such earlier date, if any, specified pursuant to Section 2.6 for Securities of such series, and if not converted prior to the close of business on such date, the right of conversion will be lost and that Holders who want to convert Securities must satisfy the requirements set forth in the terms thereof, that payment will be made upon presentation and surrender of such Securities, that any interest accrued to the date fixed for redemption will be paid as specified in such notice and that on and after said date any interest thereon or on the portions thereof to be redeemed will cease to accrue. If less than all of the Outstanding Securities of a series are to be redeemed, the notice of redemption shall specify the number or numbers or distinguishing symbol or symbols of the Securities to be redeemed. In case any Security of a series is to be redeemed in part only the notice of redemption shall state the portion of the -61- principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of such series in principal amount equal to the unredeemed portion thereof will be issued. Prior to the redemption date specified in the notice of redemption given as provided in this Section, the Issuer will deposit with the Trustee or with one or more paying agents (or, if the Issuer is acting as its own paying agent, segregate and hold in trust as required by the Trust Indenture Act of 1939) an amount of money (in the currency or units of currencies or composite currency in which the Securities so called for redemption are denominated or an appropriate equivalent thereof) sufficient to redeem on the redemption date all the Securities of such series or portions thereof so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption. If less than all the Outstanding Securities of a series are to be redeemed (or less than the full principal amount of each Security in such series is to be redeemed), the Issuer will deliver to the Trustee at least 60 days prior to the date fixed for redemption (or such shorter period if acceptable to the Trustee) an Officers' Certificate stating the aggregate principal amount of Securities to be redeemed and, if the Trustee is not acting as the repository of the Register for such series, a current list of all Outstanding Securities of such series. If less than all the Outstanding Securities of a series are to be redeemed, the Trustee shall select, in such manner as it shall deem appropriate and fair, Securities of such series to be redeemed in whole or in part; however, if less than all the Securities of any series with differing issue dates, interest rates and stated maturities are to be redeemed, the Issuer 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. Except as otherwise specified for Securities of a particular series pursuant to Section 2.6, Securities may be redeemed in part in amounts equal to the minimum authorized denomination for Securities of such series or any multiple thereof. The Trustee shall promptly notify the Issuer in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities of any series shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed. SECTION 10.3 Payment of Securities Called for Redemption. If notice ------------------------------------------- of redemption has been given as provided in Section 10.2, the Securities or portions of Securities specified in such notice shall become due and payable on the date and at the place or places stated in such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption, and on and after said date (unless the Issuer shall default in the payment of such Securities or portions thereof at the redemption price, together with interest accrued to said date) interest on the Securities or portions of Securities so called for redemption shall cease to accrue and, except as provided in Sections 5.4 and 9.4, such Securities shall cease from and after the date fixed for redemption to be entitled to any benefit or security under this Indenture (including, but not limited to, conversion rights pursuant to Article Twelve which shall cease at the close of -62- business on the third Business Day prior to the date fixed for redemption or on such earlier day, if any, specified pursuant to Section 2.6 for such Securities), and the Holders of such Securities shall have no right in respect of such Securities except the right to receive the redemption price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such Securities at a place of payment specified in said notice, said Securities or the specified portions thereof shall be paid and redeemed by the Issuer at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; provided, that if the date fixed for -------- redemption is an interest payment date, the interest due on that date shall be payable to the Holders of such Securities registered as such on the relevant record date according to their terms. If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal thereof so to be redeemed shall, until paid or duly provided for, bear interest from the date fixed for redemption at the Overdue Rate applicable to such series. Upon presentation of any Security redeemed in part only, the Issuer shall execute (in each case with the Guaranty endorsed thereon executed by the Guarantor) and the Trustee shall authenticate and make available for delivery to or on the order of the Holder thereof, at the expense of the Issuer, a new Security or Securities of such series, of authorized denominations, in principal amount equal to the unredeemed portion of the Security so presented. SECTION 10.4 Exclusion of Certain Securities from Eligibility for ---------------------------------------------------- Selection for Redemption. Securities shall be excluded from eligibility for - ------------------------ selection for redemption if they are identified by registration and certificate number or other distinguishing symbol in a written statement signed by an authorized officer of the Issuer and delivered to the Trustee at least 10 days prior to the date on which Securities are to be selected for redemption as being owned of record and beneficially by, and not pledged or hypothecated by, either (a) the Issuer or the Guarantor or (b) an entity specifically identified in such written statement directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or the Guarantor. SECTION 10.5 Mandatory and Optional Sinking Funds. 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". The date on which a sinking fund payment is to be made is herein referred to as the "sinking fund payment date". In lieu of making all or any part of any mandatory sinking fund payment with respect to any series of Securities in cash, the Issuer may at its option (a) deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the mandatory sinking fund) by the Issuer or receive credit for Securities of such series (not previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant to Section 2.14, (b) receive credit for optional sinking fund payments (not previously so credited) made pursuant to this Section, (c) receive credit for Securities of such series (not previously so credited) that have -63- been surrendered to the Issuer for conversion, or (d) receive credit for Securities of such series (not previously so credited) redeemed by the Issuer through any optional redemption provision contained in the terms of Securities of such series. Securities so delivered or credited shall be received or credited by the Trustee at the sinking fund redemption price specified in such Securities, and the amount of such mandatory sinking fund payment shall be reduced accordingly. On or before the sixtieth day next preceding each sinking fund payment date for any series of Securities, the Issuer will deliver to the Trustee a certificate of the Issuer (which need not contain the statements required by the Trust Indenture Act of 1939) signed by an officer of the Issuer who is one of the officers authorized to sign an Officers' Certificate (a) specifying the portion, if any, of the mandatory sinking fund payment to be satisfied by payment of cash and the portion, if any, to be satisfied by credit of Securities of such series, (b) stating that none of such Securities has theretofore been so credited, (c) stating that no Event of Default with respect to such series has occurred (which has not been waived or cured) and is continuing and (d) stating whether or not the Issuer intends to exercise its right to make an optional sinking fund payment with respect to such series and, if so, specifying the amount of such optional sinking fund payment which the Issuer intends to pay on or before the next succeeding sinking fund payment date. Any Securities of such series to be credited and required to be delivered to the Trustee in order for the Issuer to be entitled to credit therefor as aforesaid which have not theretofore been delivered to the Trustee shall be delivered for cancellation pursuant to Section 2.14 to the Trustee with such certificate. Such certificate shall be irrevocable and upon its receipt by the Trustee the Issuer shall become obligated to make all the cash payments or payments therein referred to, if any (which cash may be deposited with the Trustee or with one or more paying agents or, if the Issuer is acting as its own paying agent, segregated and held in trust as required by the Trust Indenture Act of 1939), on or before the next succeeding sinking fund payment date. Failure of the Issuer, on or before any such sixtieth day, to deliver such certificate and Securities specified in this paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election of the Issuer (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of such series in respect thereof and (ii) that the Issuer will make no optional sinking fund payment with respect to such series as provided in this Section. If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund payments made in cash shall exceed U.S.$100,000 or, if payments on Securities of such series are to be made in a currency other than Dollars or in units or composites of two more currencies, the equivalent thereof (based upon the Market Exchange Rate on the sixtieth day preceding the relevant sinking fund payment date or if the Market Exchange Rate is not available for such date, the immediately preceding date for which the Market Exchange Rate is available) in the relevant currency or unit or composite currency (or such other amount as is specified for a particular series of Securities pursuant to Section 2.6), or a lesser sum if the Issuer shall so request, with respect to the Securities of any particular series, such cash shall be applied by the Trustee (or by the Issuer if the Issuer is acting as its own paying agent) on the sinking fund payment date on which such payment is made (or, if such payment is made before a sinking fund payment date, on the next sinking fund payment date following the date of such payment) to the redemption of such Securities at the sinking fund redemption price specified in such Securities for -64- operation of the sinking fund together with accrued interest, if any, to the date fixed for redemption. If such amount shall be U.S.$100,000 or, if payments on Securities of such series are to be made in a currency other than Dollars or in units or composites of two more currencies, the equivalent thereof (based upon the Market Exchange Rate on the sixtieth day preceding the relevant sinking fund payment date or if the Market Exchange Rate is not available for such date, the immediately preceding date for which the Market Exchange Rate is available) in the relevant currency or unit or composite currency (or such other amount as is specified for the particular series pursuant to Section 2.6), or less and the Issuer makes no such request then it shall be carried over until a sum in excess of U.S.$100,000, or the equivalent thereof in the relevant currency or unit or composite currency, is available. The Trustee shall select, in the manner provided in Section 10.2, for redemption on such sinking fund payment date, Securities of such series with respect to which cash payment of the applicable sinking fund redemption price will be made and shall (if requested in writing by the Issuer) inform the Issuer of the serial numbers or other distinguishing symbols of the Securities of such series (or portions thereof) so selected. If the Trustee shall be required to select Securities of any series for the sinking fund and is not acting as repository of the Register for such series, at least 60 days prior to the sinking fund payment date the Issuer shall furnish to the Trustee a current list of all Outstanding Securities of such series. Securities of any series which are (a) owned by the Issuer, the Guarantor or an entity actually known by the Trustee to be directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or the Guarantor, as shown by the Register, and not known to the Trustee to have been pledged or hypothecated by the Issuer, the Guarantor or any such entity or (b) identified in an Officers' Certificate at least 60 days prior to the sinking fund payment date as being beneficially owned by, and not pledged or hypothecated by, the Issuer, the Guarantor or an entity directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or the Guarantor, shall be excluded from Securities of such series eligible for selection for redemption. The Trustee, in the name and at the expense of the Issuer (or the Issuer, if it shall so notify the Trustee in writing) shall cause notice of redemption of the Securities of such series to be given in substantially the manner provided in Section 10.2, except that the notice of redemption shall also state that the Securities are being redeemed by operation of the sinking fund (and with the effect provided in Section 10.3) for the redemption of Securities of such series which, if applicable, is in part at the option of the Issuer. The amount of any sinking fund payments not so applied or allocated by the Trustee (or by the Issuer if the Issuer is acting as its own paying agent) to the redemption of Securities of such series shall be added to the next cash sinking fund payment received by the Trustee (or if the Issuer is acting as its own paying agent, segregated and held in trust as required by the Trust Indenture Act of 1939) for such series and, together with such payment (or such amount so segregated), shall be applied in accordance with the provisions of this Section 10.5. Any and all sinking fund moneys held by the Trustee (or if the Issuer is acting as its own paying agent, segregated and held in trust as required by the Trust Indenture Act of 1939) on the stated maturity date of the Securities of any particular series (or earlier, if such maturity is accelerated), which are not held for the payment or redemption of particular Securities of such series shall be applied by the Trustee (or by the Issuer if the Issuer is acting as its own paying agent), together -65- with other moneys, if necessary, sufficient for the purpose, to the payment of the principal of, and interest on, the Securities of such series at maturity. On or before each sinking fund payment date, the Issuer shall pay to the Trustee in cash (or if the Issuer is acting as its own paying agent will segregate and hold in trust as required by the Trust Indenture Act of 1939) or shall otherwise provide for the payment of all interest accrued to the date fixed for redemption on Securities (or portions thereof) to be redeemed on such sinking fund payment date. Neither the Issuer nor the Trustee shall redeem or cause to be redeemed any Securities of a series with sinking fund moneys or mail any notice of redemption of Securities for such series by operation of the sinking fund during the continuance of a default in payment of interest, if any, on such Securities or of any Event of Default (other than an Event of Default occurring as a consequence of this paragraph, with respect to such Securities) except that, where the mailing of notice of redemption of any Securities shall theretofore have been made, the Trustee (or the Issuer if the Issuer is acting as its own paying agent) shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Issuer (or the Issuer shall have segregated) a sum sufficient for such redemption. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such default or Event of Default, be deemed to have been collected under Article Four and held for the payment of all such Securities. Notwithstanding anything in the foregoing to the contrary, in case such default or Event of Default shall have been waived as provided in Section 4.9 or the default or Event of Default cured on or before the sixtieth day preceding the sinking fund payment date in any year, such moneys shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section 10.5 to the redemption of such Securities. SECTION 10.6 Conversion Arrangement on Call for Redemption. If in ---------------------------------------------- connection with any redemption of Securities of any series with respect to which the Holders have the right to convert such Securities into shares of Common Stock, the Holders thereof do not elect to convert such Securities, the Issuer may arrange for the purchase and conversion of such Securities by an agreement with one or more investment banking firms or other purchasers to purchase such Securities by paying to the Trustee in trust for the Holders, not later than the close of business on the third Business Day prior to the date fixed for redemption, an amount not less than the applicable redemption price, together with interest accrued to the date fixed for redemption, of such Securities. Notwithstanding anything to the contrary contained in this Article Ten, the obligation of the Issuer to pay the redemption price of such Securities, together with interest accrued to the date fixed for redemption, shall be deemed to be satisfied and discharged to the extent such amount is so paid by such purchasers to the Trustee in trust for the Holders. If such an agreement is made, any Securities not duly surrendered for conversion by the Holders thereof may, at the option of the Issuer, be deemed, to the fullest extent permitted by law, to have been acquired by such purchasers from such Holders and (notwithstanding anything to the contrary contained in Article Twelve) surrendered by such purchasers for conversion, all as of immediately prior to the close of business on the third Business Day prior to the date fixed for redemption, subject to payment by the purchasers as specified above. The Trustee shall hold and dispose of any such amount paid to it in the same manner as it would moneys deposited with it by -66- the Issuer for the redemption of Securities. Without the Trustee's prior written consent, no arrangement between the Issuer and such purchasers for the purchase and conversion of any Securities shall increase or otherwise affect any of the powers, duties, responsibilities or obligations of the Trustee as set forth in this Indenture, and the Issuer agrees to indemnify the Trustee from, and hold it harmless against, any and all loss, liability, claim, damage or expense arising out of or in connection with any such arrangement for the purchase and conversion of any Securities between the Issuer and such purchasers to which the Trustee has not consented in writing, including the costs and expenses incurred by the Trustee and its counsel in the defense of any claim (whether asserted by the Issuer, the Guarantor, a Holder or any other Person) or liability arising out of or in connection with the exercise or performance of any of its powers, duties, responsibilities or obligations under this Indenture. ARTICLE ELEVEN SUBORDINATION OF SECURITIES --------------------------- SECTION 11.1 Agreement that Securities Subordinated to Extent ------------------------------------------------ Provided. The Issuer, for itself, its successors and assigns, covenants and - -------- agrees, and each Holder of Securities likewise covenants and agrees by his acceptance thereof, that the obligation to make any payment pursuant to the Securities for the principal of (and premium, if any) and interest on each and all of the Securities is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, to the prior payment in full of all Issuer Senior Indebtedness. All Securities issued hereunder shall rank pari passu with all other Securities issued hereunder. SECTION 11.2 Liquidation, Dissolution, Bankruptcy. Upon any payment ------------------------------------ or distribution of the assets of the Issuer to creditors upon a total or partial liquidation or a total or partial dissolution of the Issuer or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Issuer or its respective properties: (i) holders of Issuer Senior Indebtedness shall be entitled to receive payment in full of all Issuer Senior Indebtedness before the Holders shall be entitled to receive any payment of principal of or interest (including interest accruing subsequent to the commencement of any proceeding for the bankruptcy or reorganization of the Issuer under any applicable bankruptcy, insolvency, or similar law now or hereafter in effect) on or other amounts with respect to the Securities; and (ii) until the Issuer Senior Indebtedness is paid in full, any payment or distribution to which Securityholders would be entitled but for this Article Eleven shall be made to holders of Issuer Senior Indebtedness. SECTION 11.3 Default on Issuer Senior Indebtedness; Subrogation. The -------------------------------------------------- Issuer may not pay the principal of, premium (if any) or interest (including interest accruing subsequent to the commencement of any proceeding for the bankruptcy or reorganization of the Issuer under any applicable bankruptcy, insolvency or similar law now or hereafter in effect) on or other amounts with respect to the Securities or make any deposit pursuant to Section 9.6 or repurchase, redeem or otherwise retire any Securities (collectively, "pay the Securities") if (i) any Issuer -67- Senior Indebtedness is not paid when due or (ii) any other default on Issuer Senior Indebtedness occurs and the maturity of such Issuer Senior Indebtedness is accelerated in accordance with its terms unless, in either case, (x) the default has been cured or waived and any such acceleration has been rescinded in writing or (y) such Issuer Senior Indebtedness has been paid in full; provided, -------- however, that the Issuer may pay the Securities without regard to the foregoing - ------- if the Issuer and the Trustee receive written notice approving such payment from the Representative of the holders of Issuer Senior Indebtedness with respect to which either of the events set forth in clause (i) or (ii) of the immediately preceding sentence has occurred and is continuing. During the continuance of any default (other than a default described in clause (i) or (ii) of the preceding sentence) with respect to any Issuer Senior Indebtedness pursuant to which the maturity thereof may be accelerated immediately without further notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods, the Issuer may not pay the Securities for a period (a "Payment Blockage Period") commencing upon the receipt by the Issuer and the Trustee of written notice (a "Blockage Notice") of such default from a Representative of the holders of Issuer Senior Indebtedness specifying an election to effect a Payment Blockage Period and ending 179 days thereafter (or earlier if such Payment Blockage Period is terminated (i) by written notice to the Trustee and the Issuer from the Representative who gave such Blockage Notice, (ii) because the default giving rise to such Blockage Notice is no longer continuing or (iii) by repayment in full of such Issuer Senior Indebtedness). Notwithstanding the provisions of the immediately preceding sentence (but subject to the provisions contained in the first sentence of this Section 11.3), unless the holders of such Issuer Senior Indebtedness or a Representative of such holders shall have accelerated the maturity of such Issuer Senior Indebtedness, the Issuer may resume payments on the Securities after such Payment Blockage Period. Not more than one Blockage Notice may be given in any consecutive 360-day period, irrespective of the number of defaults with respect to Issuer Senior Indebtedness during such period. After all Issuer Senior Indebtedness is paid in full and all commitments in respect of the Issuer Senior Indebtedness have expired or terminated and until the Securities are paid in full, Securityholders shall be subrogated (without any duty on the part of the holders of Issuer Senior Indebtedness to warrant, create, effectuate, preserve or protect such subrogation) to the rights of holders of Issuer Senior Indebtedness to receive distributions applicable to Issuer Senior Indebtedness. A distribution made under this Article Eleven to holders of Issuer Senior Indebtedness which otherwise would have been made to Securityholders is not, as between the Issuer and Securityholders, a payment by the Issuer of Issuer Senior Indebtedness. SECTION 11.4 Obligation of the Issuer Unconditional. Nothing -------------------------------------- contained in this Article or elsewhere in this Indenture or in the Securities is intended to or shall impair as between the Issuer and the Holders of the Securities, the obligation of the Issuer, which is absolute and unconditional, to pay to the Holders of the Securities the principal of (and premium, if any) and interest (including interest accruing subsequent to the commencement of any proceeding for the bankruptcy or reorganization of the Issuer under any applicable bankruptcy, insolvency or similar law now or hereafter in effect) on the Securities as and when the same shall become due and payable in accordance with the terms of the Securities, or is intended to or shall affect the relative rights of the Holders of the Securities and creditors of the Issuer other than the holders of the Issuer Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or the Holder -68- of any Securities from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article of the holders of Issuer Senior Indebtedness in respect of cash, property or securities of the Issuer received by the exercise of any such remedy. SECTION 11.5 No Fiduciary Duty to Holders of Issuer Senior --------------------------------------------- Indebtedness. The Trustee shall not be deemed to owe any duty to the holders of - ------------ Issuer Senior Indebtedness, except as provided in this Article and shall not be liable to any such holders if the Trustee shall in good faith mistakenly pay over or distribute to Holders of Securities or to the Issuer or to any other person cash, property or securities to which any holders of Issuer Senior Indebtedness shall be entitled by virtue of this Article or otherwise. With respect to the holders of Issuer Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants or obligations as are specifically set fort in this Article and no implied covenants or obligations with respect to holders of Issuer Senior Indebtedness shall be read into this Indenture against the Trustee. SECTION 11.6 Notice to Trustee and Paying Agent of Facts Prohibiting ------------------------------------------------------- Payments. Notwithstanding any of the provisions of this Article or any other - -------- provision of this Indenture to the contrary, neither the Trustee nor any paying agent shall at any time be charged with knowledge of the existence of any facts which would prohibit the making of any payment of moneys to or by the Trustee or any paying agent, unless and until the Trustee or any paying agent shall have received an Officers' Certificate from the Issuer or from one or more holders of Issuer Senior Indebtedness or from any trustee or other representative therefor who shall have been certified by the Issuer or otherwise established to the reasonable satisfaction of the Trustee or any paying agent to be such a holder or trustee or other representative and, prior to the receipt of any such written notice, the Trustee or any paying agent, subject to the provisions of Section 5.1, shall be entitled in all respects to assume that no such facts exist; provided that, if prior to the fifth Business Day preceding the date upon which by the terms hereof any such moneys may become payable, or in the event of the execution of an instrument pursuant to Section 9.1 acknowledging satisfaction and discharge of this Indenture, then if prior to the second Business Day preceding the date of such execution, the Trustee or any paying agent shall not have received with respect to such moneys the notice provided for in this Section, then, anything herein contained to the contrary notwithstanding, the Trustee or any paying agent may, in its discretion, receive such moneys 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 on or after such date; provided, however, no such application shall affect the obligations -------- ------- under this Article of the persons receiving such moneys from the Trustee or any paying agent. SECTION 11.7 Application by Trustee of Moneys. Anything in this -------------------------------- Indenture to the contrary notwithstanding, any deposit of moneys by the Issuer with the Trustee or any paying agent (whether or not in trust) for the payment of the principal of (and premium, if any) or interest on any Securities shall, except as provided in Section 11.6, be subject to the provisions of Sections 11.1, 11.2 and 11.3. SECTION 11.8 Subordination Rights Not Impaired By Acts or Omissions ------------------------------------------------------ of Issuer or Holders of Issuer Senior Indebtedness. No right of any present or - -------------------------------------------------- future holders of any -69- Issuer Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Issuer or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Issuer with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof with which any such holder may have or be otherwise charged. The holders of Issuer Senior Indebtedness may at any time or from time to time and in their absolute discretion, change the manner, place or terms of payment, change or extend the time of payment of, or renew or alter, any such Issuer Senior Indebtedness, or amend or supplement any instrument pursuant to which any such Issuer Senior Indebtedness is issued or by which it may be secured, or release any security therefor, or exercise or refrain from exercising any other of their rights under the Issuer Senior Indebtedness, including, without limitation, the waiver of default thereunder, all without notice to or assent from the holders of the Securities or the Trustee and without affecting the obligations, the Trustee or the Holders of the Securities under this Article. SECTION 11.9 Authorization of Trustee to Effectuate Subordination of ------------------------------------------------------- Securities. Each Holder of a Security, by his acceptance thereof, authorizes - ---------- and expressly directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article. SECTION 11.10 Certain Issuances Deemed Payment. For purposes of this -------------------------------- Article Eleven only, (a) the issuance and delivery of (1) junior securities in respect of any Security of any series or (2) Common Stock upon conversion of a Security of any series in accordance with Article Twelve shall not be deemed to constitute a payment or distribution on account of the principal of or premium, if any, or interest, if any, on such Security or on account of the purchase or other acquisition of such Security, and (b) the payment, issuance or delivery of cash, property or securities (other than junior securities) in respect of a Security of any series shall be deemed to constitute payment on account of principal of such Security. For the purposes of this Section, the term "junior securities" means (a) shares of any class of the Issuer and (b) securities of the Issuer which are subordinated in right of payment to all Issuer Senior Indebtedness 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 Securities are so subordinated as provided in this Article Eleven. Nothing contained in this Article Eleven or elsewhere in this Indenture or in the Securities is intended to or shall impair, as among the Issuer, the Guarantor, the creditors of either of them other than holders of Issuer Senior Indebtedness and the Holders of the Securities, the right, which is absolute and unconditional, of the Holder of any Security to convert such Security in accordance with Article Twelve. SECTION 11.11 Reliance on Judicial Order or Certificate of Liquidating -------------------------------------------------------- Agent. Upon any payment or distribution of assets of the Issuer referred to in - ----- this Article Eleven, the Trustee, subject to the provisions of Section 5.1, and the Holders of the Securities shall be entitled to conclusively rely upon any order or decree entered by a court of competent jurisdiction in which any proceedings of the nature referred to in Section 11.2 are pending, or a certificate of the administrator, receiver, liquidator, custodian, trustee, other similar officer of the Issuer or other person making such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of Issuer Senior Indebtedness and other indebtedness of the Issuer, the -70- amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article Eleven. SECTION 11.12 Rights of Trustee as a Holder of Issuer Senior ---------------------------------------------- Indebtedness; Preservation of Trustee's Rights. The Trustee in its individual - ---------------------------------------------- capacity shall be entitled to all the rights set forth in this Article Eleven with respect to any Issuer Senior Indebtedness which may at any time be held by it, to the same extent as any other holder of Issuer Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder. Nothing in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to Section 5.5. ARTICLE TWELVE CONVERSION OF SECURITIES ------------------------ SECTION 12.1 General. If so provided in the terms of the Securities ------- of any series established in accordance with Section 2.6, the principal amount of the Securities of such series shall be convertible into shares of Common Stock in accordance with this Article Twelve and the terms of such series of Securities if such terms differ from this Article Twelve; provided, however, that if any of the terms by which any such Security shall be convertible into Common Stock are set forth in a supplemental indenture entered into with respect thereto pursuant to Article Seven hereof, the terms of such supplemental indenture shall govern. SECTION 12.2 Right to Convert. Subject to and upon compliance with ---------------- the provisions of this Article, the Holder of any Security that is convertible into Common Stock shall have the right, at such Holder's option, at any time on or after the date of original issue of such Security or such other date specified in the applicable Resolution delivered pursuant to Section 2.6 and prior to the close of business on the date set forth in such Resolution (or if such Security is called for redemption, then in respect of such Security to and including but not after the close of business on the third Business Day prior to the date fixed for redemption or on such earlier day, if any, specified pursuant to Section 2.6 for such Security unless the Issuer shall default in the payment due on such date) to convert the principal amount of any such Security of any authorized denomination or, in the case of any Security to be converted of a denomination greater than the minimum denomination for Securities of the applicable series, any portion of such principal which is an authorized denomination or an integral multiple thereof, into that number of fully paid and nonassessable shares of Common Stock obtained by dividing the principal amount of such Security or portion thereof surrendered for conversion by the Conversion Price therefor by surrender of the Security so to be converted in whole or in part in the manner provided in Section 12.3. Such conversion shall be effected by the Issuer in accordance with the provisions of this Article and the terms of the Securities, if such terms differ from this Article. SECTION 12.3 Manner of Exercise of Conversion Privilege; Delivery of ------------------------------------------------------- Common Stock; No Adjustment for Interest or Dividends. In order to effect a - ----------------------------------------------------- conversion, the -71- holder of any Security to be converted, in whole or in part, shall surrender such Security to the Trustee or conversion agent at the office or agency maintained by the Issuer for such purpose, as provided in Section 3.2 and shall deliver written notice of conversion, which shall be substantially in the Form of Election to Convert as provided for in Section 2.17, to such office or agency. The notice shall be accompanied by payments in respect of transfer taxes, if required pursuant to Section 12.6. Such notice, once given, shall be irrevocable, and may not be withdrawn. Each Security surrendered for conversion shall, unless the shares of Common Stock deliverable on conversion are to be issued in the same name as the registration of such Security, be duly endorsed by or be accompanied by instruments of transfer, in form satisfactory to the Issuer, duly executed by the Holder or such Holder's duly authorized attorney, and by any payment required pursuant to this Section 12.3. As promptly as practicable after the surrender of such Security and notice, as aforesaid, the Issuer shall deliver or cause to be delivered at such office or agency to such Holder, or on such Holder's written order, a certificate or certificates for the number of full shares of Common Stock deliverable upon the conversion of such Security or portion thereof in accordance with the provisions of this Article and a check or cash in respect of any fractional interest in respect of a share of Common Stock arising upon such conversion as provided in Section 12.4. In case any Security of a denomination greater than the minimum denomination for Securities of the applicable series shall be surrendered for partial conversion, the Issuer shall execute and register and the Trustee shall authenticate and deliver to or upon the written order of the Issuer and the Holder of the Security so surrendered, without charge to such Holder, a new Security or Securities of the same series in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Security. Each conversion shall be deemed to have been effected as of the date on which such Security shall have been surrendered (accompanied by the funds, if any, required by the last paragraph of this Section) and such notice received by the Issuer, as aforesaid, and the person or persons in whose name or names any certificate or certificates for shares of Common Stock shall be registrable upon such conversion shall become on said date the holder of record of the shares represented thereby, provided, however, that any such surrender on any date when the stock transfer books of the Issuer shall be closed shall constitute the person in whose name the certificates are to be registered as the record holder thereof for all purposes on the next succeeding day on which such stock transfer books are open, but such conversion shall be at the Conversion Price in effect on the date upon which such Security shall have been so surrendered. Any Security or portion thereof surrendered for conversion during the period from the close of business on the record date for any interest payment date to the opening of business on such interest payment date shall (unless such Security or portion thereof being converted shall have been called for redemption or submitted for repayment on a date during such period) be accompanied by payment, in legal tender or other funds acceptable to the Issuer, of an amount equal to the interest otherwise payable on such interest payment date on the principal amount being converted; provided, however, that no such payment need be made if there shall exist at the time of conversion a default in the payment of interest on the applicable series of Securities. An amount equal to such payment shall be paid by the Issuer on such interest payment date to the Holder of such Security on such record date; provided, however, that if the Issuer shall default in the payment of interest on such interest payment date, such amount shall be paid to the Person who made such required payment. Except as provided above in this Section, no adjustment shall -72- be made for interest accrued on any Security converted or for dividends on any shares issued upon the conversion of such Security as provided in this Article. SECTION 12.4 Cash Payments in Lieu of Fractional Shares. No ------------------------------------------ fractional shares of Common Stock shall be delivered upon conversion of Securities. If more than one Security shall be surrendered for conversion at one time by the same Holder, the number of full shares of Common Stock which shall be deliverable upon conversion shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof to the extent permitted hereby) so surrendered. Instead of any fraction of a share of Common Stock which would otherwise be deliverable upon the conversion of any Security, the Issuer shall pay to the Holder of such Security an amount in cash (computed to the nearest cent, with one-half cent being rounded upward) equal to the same fraction of the closing price (determined in the manner provided in Section 12.5(a)(v)) of the Common Stock on the Trading Day (as defined in Section 12.5(a)(v)) next preceding the date of conversion. SECTION 12.5 Conversion Price Adjustments; Effect of --------------------------------------- Reclassification, Mergers, Consolidations and Sales of Assets. (a) The - ------------------------------------------------------------- Conversion Price shall be adjusted from time to time as follows: (i) In case the Issuer shall (x) pay a dividend or make a distribution on the Common Stock in shares of Common Stock, (y) subdivide the outstanding Common Stock into a greater number of shares or (z) combine the outstanding Common Stock into a smaller number of shares, the Conversion Price shall be adjusted so that the Holder of any Security thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock of the Issuer which such Holder would have owned or have been entitled to receive after the happening of any of the events described above had such Security been converted immediately prior to the record date in the case of a dividend or the effective date in the case of subdivision or combination. An adjustment made pursuant to this subparagraph (i) shall become effective immediately after the record date in the case of a dividend, except as provided in subparagraph (vii) below, and shall become effective immediately after the effective date in the case of a subdivision or combination. (ii) In case the Issuer shall issue rights or warrants to all holders of shares of Common Stock entitling them [(for a period expiring within 45 days after the record date mentioned below)] to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share of Common Stock (as defined for purposes of this subparagraph (ii) in subparagraph (v) below), the Conversion Price in effect after the record date for the determination of stockholders entitled to receive such rights or warrants shall be determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on such record date plus the number of shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so offered would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on the record date for issuance of such rights or warrants plus the number of additional shares of Common Stock receivable upon exercise of such rights or warrants. Such adjustment -73- shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately, except as provided in subparagraph (vii) below, after such record date. (iii) In case the Issuer shall distribute to all holders of Common Stock any shares of capital stock of the Issuer (other than Common Stock) or evidences of its indebtedness or assets (excluding cash dividends or distributions paid from retained earnings of the Issuer or dividends payable in Common Stock) or rights or warrants to subscribe for or purchase any of its securities (excluding those rights or warrants referred to in subparagraph (ii) above) (any of the foregoing being hereinafter in this subparagraph (iii) called the "Assets"), then, in each such case, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the record date for determination of stockholders entitled to receive such distribution by a fraction the numerator of which shall be the current market price per share (as defined for purposes of this subparagraph (iii) in subparagraph (v) below) of the Common Stock at such record date for determination of stockholders entitled to receive such distribution less the then fair market value (as determined by the Board of Directors, whose determination shall be conclusive) of the portion of the Assets so distributed applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in subparagraph (v) below) of the Common Stock at such record date. Such adjustment shall become effective immediately, except as provided in subparagraph (vii) below, after the record date for the determination of stockholders entitled to receive such distribution. (iv) If, pursuant to subparagraph (ii) or (iii) above, the number of shares of Common Stock into which a Security is convertible shall have been adjusted because the Issuer has declared a dividend, or made a distribution, on the outstanding shares of Common Stock in the form of any right or warrant to purchase securities of the Issuer, or the Issuer has issued any such right or warrant, then, upon the expiration of any such unexercised right or unexercised warrant, the Conversion Price shall forthwith be adjusted to equal the Conversion Price that would have applied had such right or warrant never been declared, distributed or issued. (v) For the purpose of any computation under subparagraphs (ii) or (iii) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices of the Common Stock for the shorter of (i) 30 consecutive Trading Days ending on the last full Trading Day on the exchange or market specified in the second following sentence prior to the Time of Determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or warrants or such distribution through such last full Trading Day prior to the Time of Determination. The term "Time of Determination" as used herein shall be the time and date of the earlier of (x) the determination of stockholders entitled to receive such rights, warrants or distributions or (y) the commencement of "ex-dividend" trading in the Common Stock on the exchange or market specified in the following sentence. The closing price for each day shall be the reported last sales price, regular way, or, in case no sale takes place on such day, the average of the reported closing bid and -74- asked prices, regular way, in either case as reported on the New York Stock Exchange Composite Tape or, if the Common Stock is not listed or admitted to trading on the New York Stock Exchange at such time, on the principal national securities exchange on which the Common Stock is listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the Nasdaq National Market ("NNM") or, if the last sales price or closing bid and asked prices for the Common Stock on each such day shall not have been reported through NNM, the average of the bid and asked prices for such date as furnished by any New York Stock Exchange member firm regularly making a market in the Common Stock selected for such purpose by the Issuer or, if no such quotations are available, the fair market value of the Common Stock as determined by a New York Stock Exchange member firm regularly making a market in the Common Stock selected for such purpose by the Issuer. As used herein, the term "Trading Day" with respect to Common Stock means (x) if the Common Stock is listed or admitted for trading on the New York Stock Exchange or another national securities exchange, a day on which the New York Stock Exchange or such other national securities exchange, as the case may be, is open for business or (y) if the Common Stock is quoted on NNM, a day on which trades may be made on NNM or (z) otherwise, any day other than a Saturday or Sunday or a day on which banking institutions in the State of New York are authorized or obligated by law or executive order to close. (vi) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in such price; provided, however, that any adjustments which by reason of this subparagraph (vi) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 12.5(a) shall be made to the nearest cent or to the nearest .01 of a share, as the case may be, with one-half cent and .005 of a share, respectively, being rounded upward. Anything in this Section 12.5(a) to the contrary notwithstanding, the Issuer shall be entitled to make such reductions in the Conversion Price, in addition to those required by this Section 12.5(a), as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights or warrants to purchase stock or securities, or distribution of other assets (other than cash dividends) hereafter made by the Issuer to its stockholders shall not be taxable. (vii) In any case in which this Section 12.5(a) provides that an adjustment shall become effective immediately after a record date for an event, the Issuer may defer until the occurrence of such event (x) issuing to the Holder of any Security converted after such record date and before the occurrence of such event the additional shares of Common Stock issuable upon such conversion by reason of the adjustment required by such event over and above the Common Stock issuable upon such conversion before giving effect to such adjustment and (y) paying to such holder any amount of cash in lieu of any fractional share of Common Stock pursuant to Section 12.4. (viii) Whenever the Conversion Price is adjusted as herein provided, the Issuer shall file with the Trustee an Officers' Certificate, setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, -75- which certificate shall be conclusive evidence of the correctness of such adjustment; provided, however, that the failure of the Issuer to file such Officers' Certificate shall not affect the legality or validity of any corporate action by the Issuer. (ix) Whenever the Conversion Price for any series of Securities is adjusted as provided in this Section 12.5(a), the Issuer shall cause to be mailed to each Holder of Securities of such series at its then registered address by first-class mail, postage prepaid, a notice of such adjustment of the Conversion Price setting forth such adjusted Conversion Price and the effective date of such adjusted Conversion Price; provided, however, that the failure of the Issuer to give such notice shall not affect the legality or validity of any corporate action by the Issuer. (b) (i) Notwithstanding any other provision herein to the contrary, if any of the following events occur, namely (x) any reclassification or change of outstanding shares of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination of the Common Stock), (y) any consolidation, merger or combination of the Issuer with or into another entity as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, or (z) any sale or conveyance of all or substantially all of the assets of the Issuer to any other entity as a result of which holders of Common Stock shall be entitled to receive stock, securities or other property or assets (including cash) with respect to or in exchange for such Common Stock, then appropriate provision shall be made by supplemental indenture so that (A) the Holder of any outstanding Security that is convertible into Common Stock shall have the right to convert such Security into the kind and amount of the shares of stock and securities or other property or assets (including cash) that would have been receivable upon such reclassification, change, consolidation, merger, combination, sale or conveyance by a holder of the number of shares of Common Stock issuable upon conversion of such Security immediately prior to such reclassification, change, consolidation, merger, combination, sale or conveyance and (B) the number of shares of any such other stock or securities into which such Security shall thereafter be convertible shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the terms of adjustment provided for in this Section, and Sections 12.2, 12.3, 12.4, 12.6, 12.7, 12.8 and 12.9 shall apply on like terms to any such other stock or securities. (ii) In case of any reclassification or change of the Common Stock (other than a subdivision or combination of its outstanding Common Stock, or a change in par value, or from par value to no par value, or from no par value to par value), or of any consolidation, merger or combination of the Issuer with or into another corporation or of the sale or conveyance of all or substantially all of the assets of the Issuer, the Issuer shall cause to be filed with the Trustee and to be mailed to each Holder of Securities that are convertible into shares of Common Stock at such Holder's registered address, the date on which such reclassification, change, consolidation, merger, combination, sale or conveyance is expected to become effective, and the date as of which it is expected that holders of Common Stock shall be entitled to exchange their Common Stock for stock, -76- securities or other property deliverable upon such reclassification, change, consolidation, merger, combination, sale or conveyance. SECTION 12.6 Taxes on Shares Issued. The delivery of stock ---------------------- certificates upon conversion of Securities shall be made without charge to the Holder converting a Security for any tax in respect of the issue thereof. The Issuer shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the delivery of stock registered in any name other than of the Holder of any Security converted, and the Issuer shall not be required to deliver any such stock certificate unless and until the person or persons requesting the delivery thereof shall have paid to the Issuer the amount of such tax or shall have established to the satisfaction of the Issuer that such tax has been paid. SECTION 12.7 Shares to be Fully Paid; Compliance with Governmental ----------------------------------------------------- Requirements; Listing of Common Stock. The Issuer covenants that all shares of - ------------------------------------- Common Stock which may be delivered upon conversion of Securities of any series which are convertible into Common Stock will upon delivery be fully paid and nonassessable by the Issuer and free from all taxes, liens and charges with respect to the issue thereof. The Issuer covenants that if any shares of Common Stock to be provided for the purpose of conversion of Securities hereunder require registration with or approval of any governmental authority under any Federal or state law before such shares may be validly delivered upon conversion, the Issuer will in good faith and as expeditiously as possible endeavor to secure such registration or approval, as the case may be. The Issuer further covenants that it will, if permitted by the rules of the New York Stock Exchange, or such other national stock exchange on which the Common Stock is listed or admitted to trading or if permitted by the rules of Nasdaq if the Common Stock is approved by it for listing or quotation, list and keep listed for so long as the Common Stock shall be so listed on such exchange or Nasdaq, upon official notice of issuance, all Common Stock deliverable upon conversion of Securities of any series which are convertible into Common Stock. SECTION 12.8 Responsibility of Trustee. Neither the Trustee nor any ------------------------- conversion agent shall at any time be under any duty or responsibility to any Holder of Securities to determine whether any facts exist which may require any adjustment of the Conversion Price applicable to such Securities, or with respect to the nature or extent of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same, or whether any such supplemental indenture need be entered into. Neither the Trustee nor any conversion agent shall be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities or property, which may at any time be delivered upon the conversion of any Security; and neither the Trustee nor any conversion agent makes any representation with respect thereto. Neither the Trustee nor any conversion agent shall be responsible for any failure of the Issuer to deliver any shares of Common Stock or stock certificates or other securities or property or cash upon the surrender of any Security for the purpose of conversion or for any failure of the Issuer to comply with any of the covenants of the Issuer contained in this Article Twelve. -77- SECTION 12.9 Covenant to Reserve Shares. The Issuer covenants that -------------------------- it will at all times reserve and keep available, free from pre-emptive rights, out of its authorized but unissued Common Stock, such number of shares of Common Stock as shall then be deliverable upon the conversion of all Outstanding Securities of any series of Securities which are convertible into Common Stock. SECTION 12.10 Other Conversions. If so provided in a Resolution with ----------------- respect to the Securities of a series, the principal amount of the Securities of such series may be convertible into or exchangeable for other securities of the Issuer (which other securities may be issued under this Indenture or otherwise) or convertible into or exchangeable for securities of another Person, and the issuance of such securities upon any such conversion or exchange shall be made in accordance with the terms of such Resolution. ARTICLE THIRTEEN GUARANTY OF SECURITIES ---------------------- SECTION 13.1 Guaranty. (a) The Guarantor hereby irrevocably and -------- unconditionally guarantees on a subordinated basis as hereinafter provided to each Holder of a Security of any series authenticated and delivered by the Trustee, and to the Trustee, the due and punctual payment of the principal of, premium, if any, and interest, if any, on such Security, when and as the same shall become due and payable, subject to any applicable grace period, whether on the date of maturity, by acceleration or upon redemption pursuant to Article Ten or otherwise, according to the terms of such Security and this Indenture. (b) The Guarantor hereby agrees that its obligations hereunder shall be as principal obligor and not merely as surety, and shall be unconditional, irrevocable and absolute, irrespective of the validity, regularity or enforceability of the Securities of any series or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities of any series with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. (c) The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice with respect to the Security on which the Guaranty is endorsed or the indebtedness evidenced thereby, and all demands whatsoever and covenants that the Guaranty not be discharged except by complete performance of the obligations of the Guarantor contained in the Securities and this Indenture. If any Securityholder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantor, any custodian or other similar official acting in relation to the Issuer or the Guarantor, any amount paid by the Issuer or the Guarantor to the Trustee or such Securityholder, the Guaranty to the extent theretofore discharged, shall be reinstated in full force and effect. The Guarantor agrees that as between the Guarantor and the Holders of the Securities or the Trustee, any payment made on the Securities or to the Trustee by the Issuer or out of its assets which, pursuant to Article Eleven, is required to be paid over to the Holders of the Issuer Senior Indebtedness, shall not constitute a -78- payment on the Securities or to the Trustee but, instead, should be treated for all purposes of this Article as though such payment had not been made by the Issuer or out of its assets. (d) 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 Guaranty. (e) 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 Issuer. SECTION 13.2 Representation and Warranty. The Guarantor hereby --------------------------- represents and warrants that all acts, conditions and things required to be done and performed and to have happened precedent to the creation and issuance of the Guaranty, and to constitute the same legal, valid and binding obligations of the Guarantor enforceable in accordance with their respective terms, have been done and performed and have happened in compliance with all applicable laws. SECTION 13.3 Subrogation. The Guarantor will be subrogated to all ----------- rights of Holders of Securities of any series on which the Guaranty is endorsed against the Issuer in respect of any amount paid by the Guarantor pursuant to the Guaranty with respect to Securities of such series; provided, however, that -------- ------- the Guarantor shall not, without the consent of the Holders of all of the Securities of such series, be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of and premium, if any, and interest, if any, on all of the Securities of such series shall be paid in full or payment thereof shall have been provided for in accordance with this Indenture. SECTION 13.4 Guaranty Subordinate to Guarantor Senior Indebtedness. ----------------------------------------------------- The Guaranty shall, to the extent and in the manner set forth in this Article Thirteen, be subordinated in right of payment to the prior payment in full of all Guarantor Senior Indebtedness whether outstanding on the date hereof or hereafter created, incurred, assumed or guaranteed. SECTION 13.5 Payment Over of Proceeds Upon Dissolution, etc. (a) Upon ----------------------------------------------- any insolvency, liquidation, bankruptcy, reorganization or similar proceeding relating to the Guarantor, whether voluntary or involuntary, all principal, premium, if any, and interest, if any, due upon all Guarantor Senior Indebtedness shall first be paid in full, or provision shall be made for such payment, in cash or cash equivalents, before the Holders or the Trustee on behalf of the Holders shall be entitled to receive any payment by the Guarantor pursuant to the Guaranty. Before any payment may be made by, or on behalf of, the Guarantor pursuant to the Guaranty upon any insolvency, liquidation, bankruptcy, reorganization or similar proceeding relating to the Guarantor, whether voluntary or involuntary, any payment or distribution of assets or securities of the Guarantor of any kind or character, whether in cash, property or securities, to which the Holders or the Trustee on behalf of the Holders would be entitled, except for the provisions of this Article Thirteen, shall be made by the Guarantor or by any administrator, receiver, liquidator, custodian, trustee, other similar officer of the Guarantor or other similar person making such -79- payment or distribution, or by the Holders or the Trustee if received by them or it, directly to the holders of Guarantor Senior Indebtedness (pro rata to such --- ---- holders on the basis of the respective amounts of Guarantor Senior Indebtedness held by such holders) or their Representatives, to the extent necessary to pay all such Guarantor Senior Indebtedness in full, in cash or cash equivalents after giving effect to any concurrent payment, distribution or provision therefor to or for the holders of such Guarantor Senior Indebtedness. (b) In the event that, notwithstanding the foregoing provision prohibiting such payment or distribution, any payment or distribution of assets or securities of the Guarantor of any kind or character, whether in cash, property or securities, shall be received by the Trustee or any Holder at a time when such payment or distribution is prohibited by clause (a) above before all Guarantor Senior Indebtedness is paid in full, in cash or cash equivalents, or payment thereof provided for, and such fact shall have been made known to such Holder or Trustee, as the case may be, such payment or distribution shall be received and held in trust for the benefit of, and shall be paid over or delivered to, any administrator, receiver, liquidator, custodian, trustee, other similar officer of the Guarantor or other person making payment or distribution of assets of the Guarantor for application to the payment of all Guarantor Senior Indebtedness remaining unpaid until all such Guarantor Senior Indebtedness has been paid in full, in cash or cash equivalents, or payment thereof provided for, after giving effect to any concurrent payment, distribution or provision therefor to or for the holders of such Guarantor Senior Indebtedness. (c) The consolidation of the Guarantor with, or the merger of the Guarantor with or into, another entity or the liquidation of the Guarantor following the sale, conveyance, transfer, lease or other disposition of all or substantially all of its property and assets to another entity upon the terms and conditions provided in Article Eight shall not be deemed a liquidation for the purposes of this Section 13.5 if such other entity shall, as a part of such consolidation, merger, sale, conveyance, transfer, lease or other disposition, comply with the conditions stated in Article Eight. SECTION 13.6 Default on Guarantor Senior Indebtedness; Subrogation. ----------------------------------------------------- The Guarantor may not make any payment pursuant to the Guaranty or make any deposit pursuant to Section 9.6 (collectively, "pay the Guaranty") if (i) any Guarantor Senior Indebtedness is not paid when due or (ii) any other default on Guarantor Senior Indebtedness occurs and the maturity of such Guarantor Senior Indebtedness is accelerated in accordance with its terms unless, in either case, (x) the default has been cured or waived and any such acceleration has been rescinded in writing or (y) such Guarantor Senior Indebtedness has been paid in full; provided, however, that the Guarantor may pay the Guaranty without regard -------- ------- to the foregoing if the Guarantor and the Trustee receive written notice approving such payment from the Representative of the holders of Guarantor Senior Indebtedness with respect to which either of the events set forth in clause (i) or (ii) of the immediately preceding sentence has occurred and is continuing. During the continuance of any default (other than a default described in clause (i) or (ii) of the preceding sentence) with respect to any Guarantor Senior Indebtedness pursuant to which the maturity thereof may be accelerated immediately without further notice (except such notice as may be required to effect such acceleration) or the expiration of any applicable grace periods, the Guarantor may not pay the Guaranty for a period (a "Payment Blockage Period") commencing upon the receipt by the Guarantor and the Trustee of written notice (a "Blockage Notice") of such default from a -80- Representative of the holders of Guarantor Senior Indebtedness specifying an election to effect a Payment Blockage Period and ending 179 days thereafter (or earlier if such Payment Blockage Period is terminated (i) by written notice to the Trustee and the Guarantor from the Representative who gave such Blockage Notice, (ii) because the default giving rise to such Blockage Notice is no longer continuing or (iii) by repayment in full of such Guarantor Senior Indebtedness). Notwithstanding the provisions of the immediately preceding sentence (but subject to the provisions contained in the first sentence of this Section 13.6), unless the holders of such Guarantor Senior Indebtedness or a Representative of such holders shall have accelerated the maturity of such Guarantor Senior Indebtedness, the Guarantor may resume to pay the Guaranty after such payment Blockage Period. Not more than one Blockage Notice may be given in any consecutive 360-day period, irrespective of the number of defaults with respect to Guarantor Senior Indebtedness during such period. SECTION 13.7 Payment Permitted if No Dissolution, Bankruptcy or -------------------------------------------------- Liquidation. Nothing contained in this Article Thirteen or elsewhere in this - ----------- Indenture shall prevent (i) the Guarantor, except under the conditions described in Section 13.4 of this Indenture, from making payments pursuant to the Guaranty, or from depositing with the Trustee any money for such payments, or (ii) the application by the Trustee of any money deposited with it for the purpose of making such payment of principal of, premium, if any, and interest, if any, pursuant to the Guarantor to the Holders entitled thereto, if, at the time such application by the Trustee, it did not have actual knowledge that such payment would have been prohibited by the provisions of this Article Thirteen. SECTION 13.8 Subrogation to Rights of Holders of Guarantor Senior ---------------------------------------------------- Indebtedness. (a) Subject to the payment in full of all Guarantor Senior - ------------ Indebtedness, in cash or cash equivalents, the Holders of the Securities shall be subrogated to the rights of the holders of such Guarantor Senior Indebtedness to receive payments and distributions of cash, property and securities applicable to the Guarantor Senior Indebtedness until all of the Guarantor's obligations under the Guaranty shall be paid in full. For purposes of such subrogation, no payments or distributions to the holders of Guarantor Senior Indebtedness of any cash, property or securities to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article Thirteen, and no payments pursuant to the provisions of this Article Thirteen to the holders of Guarantor Senior Indebtedness by Holders or the Trustee, shall, as among the Guarantor, its creditors other than holders of Guarantor Senior Indebtedness, and the Holders, be deemed to be a payment or distribution by the Guarantor to or on account of the Guarantor Senior Indebtedness. (b) If any payment or distribution to which the Holders would otherwise have been entitled but for the provisions of this Article Thirteen shall have been applied, pursuant to the provisions of this Article Thirteen, to the payment of all amounts payable under Guarantor Senior Indebtedness, then, and in such case, the Holders shall be entitled to receive from the holders of such Guarantor Senior Indebtedness any payments or distributions received by such holders of Guarantor Senior Indebtedness in excess of the amount required to make payment in full of amounts payable under such Guarantor Senior Indebtedness. -81- SECTION 13.9 Provisions Solely to Define Relative Rights. The ------------------------------------------- provisions of this Article Thirteen are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities on the one hand and the holders of Guarantor Senior Indebtedness on the other hand. Nothing contained in this Article Thirteen or elsewhere in this Indenture or in the Securities or the Guaranty is intended to or shall (a) impair, as among the Guarantor, its creditors other than holders of Guarantor Senior Indebtedness and the Holders of the Securities of each series issued hereunder, the obligation of the Guarantor, which is absolute and unconditional, to pay the Holders pursuant to the Guaranty with respect to the Securities of such series; or (b) affect the relative rights against the Guarantor of the Holders of the Securities and creditors of the Guarantor other than the holders of Guarantor Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article Thirteen of the holders of Guarantor Senior Indebtedness (1) in any liquidation of the Guarantor, whether voluntary or involuntary, or bankruptcy, insolvency, receivership or similar proceedings, as referred to in Section 13.4, to receive, pursuant to and in accordance with such Section, cash, property and securities otherwise payable or deliverable to the Trustee or such Holder, or (2) under the conditions specified in Section 13.6, to prevent any payment prohibited by such Section. SECTION 13.10 Trustee to Effectuate Subordination. Each Holder of a ----------------------------------- Security by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as is necessary or as may be necessary or appropriate to effectuate the subordination provided in this Article Thirteen. SECTION 13.11 No Waiver of Subordination Provisions. No right of any ------------------------------------- present or future holder of any Guarantor Senior Indebtedness or any agent or Representative therefor to enforce subordination as provided in this Article Thirteen shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Guarantor or by any act or failure to act, in good faith, by any such holder or its agent or Representative, or by any non- compliance by the Guarantor with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such holder or any agent or Representative therefor may have or be otherwise charged with. Without in any way limiting the generality of the foregoing paragraph, the holders of Guarantor Senior Indebtedness may, at any time and from time to time, without the consent of or notice to the Trustee or the Holders of the Securities, without incurring responsibility to the Holders of the Securities and without impairing or releasing the subordination provided in this Article Thirteen or the obligations hereunder of the Holders of the Securities to the holders of Guarantor Senior Indebtedness, do any one or more of the following: (a) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Guarantor Senior Indebtedness or any instrument evidencing the same or any agreement under which Guarantor Senior Indebtedness is outstanding; (b) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Guarantor Senior Indebtedness; (c) release any person liable in any manner for the payment or collection of Guarantor Senior Indebtedness; and (d) exercise or refrain from exercising any rights or remedies against the Guarantor and any other person. -82- SECTION 13.12 Notice to Trustee. The Guarantor shall give prompt ----------------- written notice to the Trustee of any liquidation, insolvency, bankruptcy, receivership or other proceeding which would prohibit the making of any payment to or by the Trustee in respect of the Guaranty of Securities of any series. Notwithstanding the provisions of this Article Thirteen or any other provision of this Indenture or the Guaranty, 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 Guaranty, unless and until the Trustee shall have received written notice thereof from the Representative of the holders of such Guarantor Senior Indebtedness; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 5.1, shall be entitled in all respects to assume that no such facts exist; provided, -------- however, that if the Trustee shall not have received the notice provided for in - ------- this Section at least three Business Days prior to the date upon which by the terms hereof any money may become payable for any purpose (including, without limitation, the payment pursuant to the Guaranty of the principal of and premium, if any or interest, if any, on any Security), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such money and to apply the same to the purpose for which such money was 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 5.1, the Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by a person representing himself to be a Representative of holders of Guarantor Senior Indebtedness to establish that such notice has been given by a Representative. 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 Guarantor Senior Indebtedness to participate in any payment or distribution pursuant to this Article Thirteen, the Trustee may request that such person furnish evidence to the satisfaction of the Trustee as to the amount of Guarantor Senior Indebtedness held by such person, the extent to which such person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such person under this Article Thirteen, and if such evidence is not furnished, the Trustee may defer any such payment pending judicial determination as to the right of such person to receive such payment. SECTION 13.13 Reliance on Judicial Order or Certificate of -------------------------------------------- Liquidating Agent. Upon any payment or distribution of assets of the Guarantor - ----------------- referred to in this Article Thirteen, the Trustee, subject to the provisions of Section 5.1, and the Holders of the Securities shall be entitled to conclusively rely upon any order or decree entered by a court of competent jurisdiction in which any proceedings of the nature referred to in Section 13.4 are pending, or a certificate of the administrator, receiver, liquidator, custodian, trustee, other similar officer of the Guarantor or other person making such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of Guarantor Senior Indebtedness and other indebtedness of 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 Article Thirteen. SECTION 13.14 Rights of Trustee as a Holder of Guarantor Senior ------------------------------------------------- Indebtedness; Preservation of Trustee's Rights. The Trustee in its individual - ---------------------------------------------- capacity shall be entitled to all the -83- rights set forth in this Article Thirteen with respect to any Guarantor Senior Indebtedness which may at any time be held by it, to the same extent as any other holder of Guarantor Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder. Nothing in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to Section 5.5. SECTION 13.15 Not to Prevent Events of Default. The failure to make a -------------------------------- payment pursuant to the Guaranty on account of principal of or premium, if any, or interest, if any, on the Securities by reason of any provision of this Article Thirteen will not be construed as suspending the rights of the Holders to accelerate the maturity of the Securities pursuant to Article Four. SECTION 13.16 Certain Issuance Deemed Payment. For purposes of ------------------------------- Section 13.4 only, (a) the issuance and delivery of junior securities in respect of any Security of any series shall not be deemed to constitute a payment or distribution pursuant to the Guaranty on account of the principal of or premium, if any, or interest, if any, on Securities or on account of the purchase or other acquisition of Securities, and (2) the payment, issuance or delivery of cash, property or securities (other than junior securities) in respect of a Security shall be deemed to constitute payment pursuant to the Guaranty on account of principal of such Security. For the purposes of this Section, the term "junior securities" means (a) shares of any class of the Guarantor and (b) securities of the Guarantor which are subordinated in right of payment to all Guarantor Senior Indebtedness 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 Guaranty is so subordinated as provided in this Article Thirteen. Nothing contained in this Article Thirteen or elsewhere in this Indenture or in the Securities or the Guaranty is intended to or shall impair, as among the Guarantor, its creditors other than holders of Guarantor Senior Indebtedness and the Holders of the Securities, the right, which is absolute and unconditional, of the Holder of any Security to convert such Security in accordance with Article Twelve. SECTION 13.17 Trustee Not Fiduciary for Holders of Guarantor Senior ----------------------------------------------------- Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the - ------------ holders of Guarantor Senior Indebtedness and shall not be liable to any such Holders if the Trustee shall in good faith mistakenly pays over or distributes to Holders of Securities or to the Guarantor or to any other person cash, property or securities to which any holders of Guarantor Senior Indebtedness shall be entitled by this Article or otherwise. The Trustee undertakes to perform or to observe only such of its covenants or obligations as are specifically set forth in this Article Thirteen and no implied covenants or obligations with respect to holders of Guarantor Senior Indebtedness shall be read into this Indenture against the Trustee. ARTICLE FOURTEEN MISCELLANEOUS PROVISIONS ------------------------ SECTION 14.1 Incorporators, Stockholders, Officers and Directors of ------------------------------------------------------ Issuer Exempt from Individual Liability. No recourse under or upon any - --------------------------------------- obligation, covenant or -84- agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such or against any past, present or future stockholder, officer or director, as such, of the Issuer or the Guarantor or of any successor, either directly or through the Issuer, the Guarantor or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of the Securities. SECTION 14.2 Provisions of Indenture for the Sole Benefit of Parties ------------------------------------------------------- and Securityholders. Except as provided in Article Eleven, nothing in this - ------------------- Indenture or in the Securities, expressed or implied, shall give or be construed to give to any Person, other than the parties hereto and their successors and assigns and the Holders of the Securities, any legal or equitable right, remedy or claim under this Indenture or under any covenant, condition or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders of the Securities. SECTION 14.3 Successors and Assigns of Issuer and Guarantor Bound by ------------------------------------------------------- Indenture. All the covenants, stipulations, promises and agreements in this - --------- Indenture contained by the Issuer and the Guarantor shall bind each of their successors and assigns, whether or not so expressed. SECTION 14.4 Notices and Demands on Issuer, Guarantor, Trustee and ----------------------------------------------------- Securityholders. Any notice or demand which by any provision of this Indenture - --------------- is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Issuer may be given or served by being deposited postage prepaid, first-class mail, in a post office letter box (except as otherwise specifically provided herein) addressed (until another address of the Issuer is furnished by the Issuer to the Trustee) to Newmont Mining Corporation, 1700 Lincoln Street, Denver, Colorado 80203, Attention: Treasurer. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Guarantor may be given or served by being deposited postage prepaid, first-class mail, in a post office letter box (except as otherwise specifically provided herein) addressed (until another address of the Guarantor is furnished by the Guarantor to the Trustee) to Newmont Gold Company, 1700 Lincoln Street, Denver, Colorado 80203, Attention: Treasurer. Any notice, direction, request or demand by the Issuer, the Guarantor or any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing and received at its Corporate Trust Office. Where this Indenture provides for notice to Securityholders, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Securityholder entitled thereto, at his last address as it appears in the Register. In any case where notice to Securityholders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Securityholder shall affect the sufficiency of such notice with respect to other Securityholders. 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 -85- such notice. Waivers of notice by Securityholders 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. Notwithstanding anything to the contrary elsewhere in this Indenture as to the giving of notice, any other form of written notice is sufficient, if received. In case, by reason of the suspension of or irregularities in regular mail service, it shall be impracticable to mail notice to the Issuer, the Guarantor or Securityholders when such notice is required to be given pursuant to any provision of this Indenture, then notwithstanding anything to the contrary elsewhere in this Indenture as to the giving of notice, any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice. SECTION 14.5 Officers' Certificates and Opinions of Counsel; ----------------------------------------------- Statements to Be Contained Therein. Upon any application or demand by the - ---------------------------------- Issuer or the Guarantor to the Trustee to take any action under any of the provisions of this Indenture, the Issuer 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 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 have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate or opinion need be furnished. Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (a) a statement that the Person making such certificate or opinion has read such covenant or condition, (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based, (c) a statement that, in the opinion of such Person, he 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 (d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with. Any certificate, statement or opinion of an officer of the Issuer 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 officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates to factual matters or information which is in the possession of the Issuer or the Guarantor, upon the certificate, statement or opinion of or representations by an officer or officers of the Issuer or the Guarantor, unless such counsel knows that the certificate, statement or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous. Any certificate, statement or opinion of an officer of the Issuer or the Guarantor or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion -86- of or representations by an accountant or firm of accountants in the employ of the Issuer or the Guarantor, unless such officer or counsel, as the case may be, knows that the certificate or opinion or representations with respect to the accounting matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous. Any certificate or opinion of any independent firm of public accountants filed with the Trustee shall contain a statement that such firm is independent. SECTION 14.6 Official Acts by Successor Entity. Any act or --------------------------------- proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Issuer or the Guarantor shall and may be done and performed with like force and effect by the like board, committee or officer of any entity that shall at the time be the lawful sole successor of the Issuer or the Guarantor, as the case may be. SECTION 14.7 Payments Due on Saturdays, Sundays and Legal Holidays. ----------------------------------------------------- Except as may be provided pursuant to Section 2.6 with respect to any series of Tranche, if the date of maturity of interest on or principal of the Securities of any series or the date fixed for redemption or repayment of any such Security shall not be a Business Day, then payment of such interest, if any, or principal need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption or repayment, and no interest shall accrue for the period from and after such date. SECTION 14.8 NEW YORK LAW TO GOVERN. THIS INDENTURE, INCLUDING THE ---------------------- GUARANTY, AND EACH SECURITY AND THE ENDORSEMENT OF THE GUARANTY THEREON SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE. SECTION 14.9 Counterparts. This Indenture may be executed in any ------------ number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. SECTION 14.10 Effect of Headings. The Article and Section headings ------------------ herein and the Table of Contents are for convenience of reference only, are not to be considered a part hereof and shall not affect the construction hereof. SECTION 14.11 Conflict with Trust Indenture Act. If any provision --------------------------------- hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act of 1939 that is required under such Act to be a part of and govern this Indenture, the latter provisions shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act of 1939 that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be. -87- IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of __________, _____. NEWMONT MINING CORPORATION By________________________________________________ Name: Title: NEWMONT GOLD COMPANY By________________________________________________ Name: Title: CITIBANK, N.A., as Trustee By________________________________________________ Name: Title: -88- EX-5 5 OPINION OF WHITE & CASE LLP EXHIBIT 5 [WHITE & CASE LLP LETTERHEAD] July 12, 1999 Newmont Mining Corporation 1700 Lincoln Street Denver, Colorado 80203 Newmont Gold Company 1700 Lincoln Street Denver, Colorado 80203 Dear Sirs: We have examined the Registration Statement on Form S-3 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), in the form in which it is to be filed today by Newmont Mining Corporation, a Delaware corporation ("Newmont Mining"), and Newmont Gold Company, a Delaware corporation ("Newmont Gold"), with the Securities and Exchange Commission (the "Commission") relating to (i) shares of common stock, par value $1.60 per share, of Newmont Mining (the "Common Shares"), preferred stock purchase rights (the "Rights") which, prior to the occurrence of certain events, will not be exercisable or evidenced separately from the Common Shares, (ii) shares of preferred stock, par value $5.00 per share, of Newmont Mining (the "Preferred Shares"), which may be convertible into Common Shares, (iii) warrants to purchase Common Shares (the "Common Stock Warrants"), (iv) debt securities consisting of debentures, notes or other evidences of indebtedness representing unsecured, unsubordinated obligations of Newmont Mining (the "Senior Debt Securities") guaranteed by Newmont Gold pursuant to one or more guarantees (the "Senior Guarantees"), which Senior Debt Securities may be convertible into Common Shares, (v) debt securities consisting of debentures, notes or other evidences of indebtedness representing unsecured, subordinated obligations of Newmont Mining (the "Subordinated Debt Securities" and together with the Senior Debt Securities, the "Debt Securities") guaranteed by Newmont Gold pursuant to one or more guarantees (the "Subordinated Guarantees" and, together with the Senior Guarantees, the "Guarantees"), which Subordinated Debt Securities may be convertible into Common Shares and (vi) warrants to purchase Debt Securities (the "Debt Warrants"). The Common Shares, the Preferred Shares, the Common Stock Warrants, the Senior Debt Securities, Page 2 the Subordinated Debt Securities, the Guarantees and the Debt Warrants are collectively referred to herein as the "Securities". The Securities are being registered for offering and sale from time to time pursuant to Rule 415 under the Securities Act. The aggregate public offering price of the Securities will not exceed $500,000,000. The Rights will be issued pursuant to a Rights Agreement, dated as of August 30, 1990, as amended (the "Preferred Stock Rights Agreement"), between Newmont Mining and The Chase Manhattan Bank, N.A., as successor Rights Agent, filed as Exhibit 4.6 to the Registration Statement. The Common Stock Warrants are to be issued pursuant to the terms of a Warrant Agreement (the "Common Stock Warrant Agreement"), in the form filed as Exhibit 4.10 to the Registration Statement, between Newmont Mining and a bank or trust company to be named by Newmont Mining (the "Common Stock Warrant Agent"). The Senior Debt Securities are to be issued pursuant to an Indenture (the "Senior Debt Indenture"), to be dated on or about the date of the first issuance of Senior Debt Securities thereunder, among Newmont Mining, Newmont Gold, as guarantor, and Citibank, N.A., as trustee (the "Senior Debt Trustee"), filed as Exhibit 4.4 to the Registration Statement. The Subordinated Debt Securities are to be issued pursuant to an Indenture (the "Subordinated Debt Indenture"), to be dated on or about the date of the first issuance of Subordinated Debt Securities thereunder, among Newmont Mining, Newmont Gold, as guarantor, and Citibank, N.A., as trustee (the Subordinated Debt Trustee"), filed as Exhibit 4.5 to the Registration Statement. The Debt Warrants are to be issued pursuant to the terms of a Warrant Agreement (the "Debt Warrant Agreement") between Newmont Mining and a bank or trust company to be named by Newmont Mining (the "Debt Warrant Agent"). Based upon our examination of such documents, certificates, records, authorizations and proceedings as we have deemed relevant, it is our opinion that: 1. With respect to the Common Shares, when (i) the issuance of the Common Shares has been duly authorized by appropriate corporate action and (ii) the certificates for the Common Shares have been duly executed by Newmont Mining, countersigned by the transfer agent therefor and duly delivered to the purchasers thereof against payment therefor, (x) the Common Shares will be validly issued, fully paid and nonassessable and (y) the Rights, if any, included with the Common Shares will be duly authorized and validly issued. 2. With respect to the Preferred Shares, when (i) the issuance of the Preferred Shares has been duly authorized by appropriate corporate action, (ii) the Certificate of Designations establishing the terms of the Preferred Shares has been duly approved by appropriate corporate action, duly executed by Newmont Mining and filed with the Secretary of State of the State of Delaware, (iii) the certificates for the Preferred Shares have been duly executed by Newmont Mining, countersigned by the transfer agent therefor and delivered to the purchasers thereof against payment therefor, and (iv) if the Preferred Shares are convertible into Common Shares, (x) the issuance of such Common Shares has been duly authorized by appropriate corporate action, Page 3 (y) the Preferred Shares are presented for conversion in accordance with the terms thereof and (z) the certificates for such Common Shares have been duly executed by Newmont Mining, countersigned by the transfer agent therefor and duly delivered upon such conversion to the persons entitled thereto in accordance with the terms of such Preferred Shares, (a) the Preferred Shares will be validly issued, fully paid and nonassessable and (b) if the Preferred Shares are convertible into Common Shares, the Common Shares issuable upon conversion of the Preferred Shares will be validly issued, fully paid and nonassessable and the Rights, if any, included with the Common Shares will be duly authorized and validly issued. 3. With respect to the Common Stock Warrants, when (i) the Common Stock Warrant Agreement pursuant to which the Common Stock Warrants are to be issued has been duly authorized, executed and delivered by Newmont Mining and the Common Stock Warrant Agent, (ii) the issuance of the Common Stock Warrants, and the issuance of the Common Shares issuable upon exercise of the Common Stock Warrants, have been duly authorized by appropriate corporate action, (iii) the certificates representing the Common Stock Warrants have been duly executed by Newmont Mining and countersigned by the Common Stock Warrant Agent in accordance with the provisions of the Common Stock Warrant Agreement and duly delivered to the purchasers thereof against payment therefor, (iv) the Common Stock Warrants are duly exercised, and the exercise price therefor paid, in accordance with the terms of the Common Stock Warrants and the Common Stock Warrant Agreement, and (v) the certificates for the Common Shares issuable upon exercise of the Common Stock Warrants have been duly executed by Newmont Mining, countersigned by the transfer agent therefor and duly delivered to the persons entitled thereto upon such exercise, (x) the Common Stock Warrants will be valid and legally binding obligations of Newmont Mining, enforceable in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law) and (y) the Common Shares issued upon exercise of the Common Stock Warrants will be validly issued, fully paid and nonassessable and the Rights, if any, included with the Common Shares will be duly authorized and validly issued. 4. When (i) the execution of the Senior Debt Indenture has been duly authorized by Newmont Mining, Newmont Gold and the Senior Debt Trustee by appropriate corporate action, (ii) the Senior Debt Indenture, in the form filed as an exhibit to the Registration Statement, has been duly executed and delivered by Newmont Mining, Newmont Gold and the Senior Debt Trustee, (iii) the issuance of the Senior Debt Securities and approval of the final terms thereof have been duly authorized by Newmont Mining by appropriate corporate action, (iv) the Senior Debt Securities, in the form included in the Senior Debt Indenture filed as an exhibit to the Registration Statement (with such changes or additions as permitted in the Senior Debt Indenture), have been duly executed and delivered by Newmont Mining and authenticated by the Senior Debt Trustee pursuant to the Senior Debt Indenture and delivered and paid for and (v) if the Senior Debt Securities are convertible into Common Shares, (x) the issuance of such Common Shares has been duly authorized by appropriate corporate action, (y) the Senior Debt Securities Page 4 are presented for conversion in accordance with the terms thereof and (z) the certificates for such Common Shares have been duly executed by Newmont Mining, countersigned by the transfer agent therefor and duly delivered upon such conversion to the persons entitled thereto in accordance with the terms of such Senior Debt Securities, (a) the Senior Debt Securities will constitute valid and legally binding obligations of Newmont Mining under the laws of the State of New York, enforceable in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law), and (b) if the Senior Debt Securities are convertible into Common Shares, the Common Shares issuable upon conversion of the Senior Debt Securities will be validly issued, fully paid and nonassessable and the Rights, if any, included with the Common Shares will be duly authorized and validly issued. 5. When (i) the execution of the Subordinated Debt Indenture has been duly authorized by Newmont Mining, Newmont Gold and the Subordinate Debt Trustee by appropriate corporate action, (ii) the Subordinated Debt Indenture, in the form filed as an exhibit to the Registration Statement, has been duly executed and delivered by Newmont Mining, Newmont Gold and the Subordinated Debt Trustee, (iii) the issuance of the Subordinated Debt Securities and approval of the final terms thereof have been duly authorized by Newmont Mining by appropriate corporate action, (iv) the Subordinated Debt Securities, in the form included in the Subordinated Debt Indenture filed as an exhibit to the Registration Statement (with such changes or additions as permitted in the Guaranteed Subordinated Debt Indenture), have been duly executed and delivered by Newmont Mining and authenticated by the Subordinated Debt Trustee pursuant to the Subordinated Debt Indenture, and delivered and paid for and (v) if the Subordinated Debt Securities are convertible into Common Shares, (x) the issuance of such Common Shares has been duly authorized by appropriate corporate action, (y) the Subordinated Debt Securities are presented for conversion in accordance with the terms thereof and (z) the certificates for such Subordinated Debt Securities have been duly executed by Newmont Mining, countersigned by the transfer agent therefor and duly delivered upon such conversion to the persons entitled thereto in accordance with the terms of such Subordinated Debt Securities, (a) the Subordinated Debt Securities will constitute valid and legally binding obligations of Newmont Mining under the laws of the State of New York, enforceable in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law), and (b) if the Subordinated Debt Securities are convertible into Common Shares, the Common Shares issuable upon conversion of the Subordinated Debt Securities will be validly issued, fully paid and nonassessable and the Rights, if any, included with the Common Shares will be duly authorized and validly issued. 6. When (i) the execution of the Senior Debt Indenture has been duly authorized by Newmont Mining, Newmont Gold and the Senior Debt Trustee by appropriate corporate action, (ii) the Senior Debt Indenture, in the form filed as an exhibit to the Registration Statement, has Page 5 been duly executed and delivered by Newmont Mining, Newmont Gold and the Senior Debt Trustee, (iii) the issuance of the Senior Debt Securities and approval of the final terms thereof have been duly authorized by Newmont Mining by appropriate corporate action, (iv) the Senior Debt Securities, in the form included in the Guaranteed Senior Debt Indenture filed as an exhibit to the Registration Statement (with such changes or additions as permitted in the Guaranteed Senior Debt Indenture), have been duly authorized, executed and delivered by Newmont Mining and authenticated by the Senior Debt Trustee pursuant to the Senior Debt Indenture and delivered and paid for and (v) the Senior Guarantees, in the form included in the Senior Debt Indenture filed as an exhibit to the Registration Statement, have been endorsed on the Senior Debt Securities and have been duly executed by Newmont Gold, the Senior Guarantees will constitute valid and legally binding obligations of Newmont Gold under the laws of the State of New York, enforceable in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law); provided, however, that no opinion is given with respect to U.S. federal or state laws dealing with fraudulent conveyances. 7. When (i) the execution of the Subordinated Debt Indenture has been duly authorized by Newmont Mining, Newmont Gold and the Subordinated Debt Trustee by appropriate corporate action, (ii) the Subordinated Debt Indenture, in the form filed as an exhibit to the Registration Statement, has been duly executed and delivered by Newmont Mining, Newmont Gold and the Subordinated Debt Trustee, (iii) the issuance of the Subordinated Debt Securities and approval of the final terms thereof have been duly authorized by Newmont Mining by appropriate corporate action, (iv) the Subordinated Debt Securities, in the form included in the Subordinated Debt Indenture filed as an exhibit to the Registration Statement (with such changes or additions as permitted in the Subordinated Debt Indenture), have been duly executed and delivered by Newmont Mining and authenticated by the Subordinated Debt Trustee pursuant to the Subordinated Debt Indenture and delivered to and paid for and (v) the Subordinated Guarantees, in the form included in the Subordinated Debt Indenture filed as an exhibit to the Registration Statement, have been endorsed on the Senior Debt Securities and have been duly authorized, executed and delivered by Newmont Gold, the Subordinated Guarantees will constitute valid and legally binding obligations of Newmont Gold under the laws of the State of New York, enforceable in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law); provided, however, that no opinion is given with respect to U.S. federal or state laws dealing with fraudulent conveyances. 8. With respect to the Debt Warrants, when (i) the Debt Warrant Agreement pursuant to which the Debt Warrants are to be issued has been duly authorized, executed and delivered by Newmont Mining and the Debt Warrant Agent, (ii) the issuance of the Debt Warrants and the Page 6 issuance of the Debt Securities issuable upon exercise of the Debt Warrants, have been duly authorized by appropriate corporate action, (iii) the certificates representing the Debt Warrants have been duly executed by Newmont Mining and countersigned by the Debt Warrant Agent in accordance with the provisions of the Debt Warrant Agreement and duly delivered to the purchasers thereof against payment therefor, (iv) the Debt Warrants are duly exercised, and the exercise price therefor paid, in accordance with the terms of the Debt Warrants and the Debt Warrant Agreement, (v) the Debt Securities issuable upon exercise of the Warrants have been duly authorized, executed and delivered by Newmont Mining and Newmont Gold and authenticated by the applicable trustee pursuant to the applicable indenture and delivered in accordance with the terms of the Debt Warrants and the Debt Warrant Agreement, (vi) the applicable indenture has been duly authorized, executed and delivered by Newmont Mining, Newmont Gold and the applicable trustee and (vii) the applicable guarantees in the form included in the applicable indenture have been endorsed on such Debt Securities and have been duly authorized, executed and delivered by Newmont Gold, (x) the Warrants will be valid and legally binding obligations of Newmont Mining, enforceable in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law) and (y) the Debt Securities and related guarantees issued upon exercise of the Debt Warrants will constitute valid and legally binding obligations of Newmont Mining and Newmont Gold, as the case may be, under the laws of the State of New York, enforceable in accordance with their terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent transfer or other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (regardless of whether the issue of enforceability is considered in a proceeding in equity or at law); provided, however, that no opinion is given with respect to U.S. federal or state laws dealing with fraudulent conveyances. We consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm appearing under the caption "Validity of Securities" in the Prospectus forming part of the Registration Statement. In giving this consent, we do not hereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder. Very truly yours, /s/ White & Case LLP MSB:JMC:WC EX-12.1 6 COMPUTATION OF RATIO OF EARN. TO FIXED CHARGES PREF. STCK. DIV EXHIBIT 12.1 COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS (AMOUNTS IN THOUSANDS EXCEPT RATIOS) (UNAUDITED)
Three Months Ended March 31, Year Ended December 31, ----------------------------- ---------------------------------------------------------- 1999 1998 1998 1997 1996 1995 1994 ------------------- -------- ---------- ----------- ----------- --------- --------- Earnings: Income (loss) before income taxes and cumulative effect of changes in accounting principles $18,658 $38,607 $(541,335) $ 60,477 $ 82,652 $177,666 $115,755 Adjustments: Net interest expense (1) 18,373 20,492 78,823 77,067 58,619 47,099 18,588 Amortization of capitalized interest 663 495 4,434 3,221 2,359 2,594 2,299 Portion of rental expense representative of interest 445 356 3,373 2,714 3,428 2,834 1,581 Minority interest of majority- owned subsidiaries that have fixed charges 12,167 14,282 70,286 71,438 6,584 9,864 8,298 Undistributed (income) loss of less-than-50%-owned entities (3,093) - - - (18,359) (7,027) (15,549) ------- ------- --------- -------- -------- -------- -------- $47,213 $74,232 $(384,419) $214,917 $135,283 $233,030 $130,972 ======= ======= ========= ======== ======== ======== ======== Fixed Charges Net interest expense (1) $18,373 $20,492 $ 78,823 $ 77,067 $ 58,619 $ 47,099 $ 18,588 Preferred stock dividends - - - - - 15,727(2) 15,813(3) Capitalized interest 4,230 2,876 13,720 15,604 16,571 14,043 19,982 Portion of rental expense representative of interest 445 356 3,373 2,714 3,428 2,834 1,581 ------- ------- --------- -------- -------- -------- -------- $23,048 $23,724 $ 95,916 $ 95,385 $ 78,618 $ 79,703 $ 55,964 ======= ======= ========= ======== ======== ======== ======== Ratio of Earnings to Fixed Charges 2.0 3.1 (4.0) 2.3 1.7 2.9 2.3 and preferred stock dividends ===== ===== ====== ===== ===== ===== ======
(1) Includes interest expense of majority-owned subsidiaries and amortization of debt issuance costs. (2) Increased to represent pre-tax earnings which would be required to cover such dividend requirements. (3) Reflects actual preferred stock dividends without an adjustment for pre-tax earnings which would be required to cover such dividend requirements due to a tax benefit recognized in the period. EX-12.2 7 COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES EXHIBIT 12.2 COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES (AMOUNTS IN THOUSANDS EXCEPT RATIOS) (UNAUDITED)
Three Months Ended March 31, Year Ended December 31, ----------------------------- ---------------------------------------------------------- 1999 1998 1998 1997 1996 1995 1994 ------------------- -------- ---------- ----------- ----------- --------- --------- Earnings: Income (loss) before income taxes and cumulative effect of changes in accounting principles $18,658 $38,607 $(541,335) $ 60,477 $ 82,652 $177,666 $115,755 Adjustments: Net interest expense (1) 18,373 20,492 78,823 77,067 58,619 47,099 18,588 Amortization of capitalized interest 663 495 4,434 3,221 2,359 2,594 2,299 Portion of rental expense representative of interest 445 356 3,373 2,714 3,428 2,834 1,581 Minority interest of majority- owned subsidiaries that have fixed charges 12,167 14,282 70,286 71,438 6,584 9,864 8,298 Undistributed (income) loss of less-than-50%-owned entities (3,093) - - - (18,359) (7,027) (15,549) ------- ------- --------- -------- -------- -------- -------- $47,213 $74,232 $(384,419) $214,917 $135,283 $233,030 $130,972 ======= ======= ========= ======== ======== ======== ======== Fixed Charges Net interest expense (1) $18,373 $20,492 $ 78,823 $ 77,067 $ 58,619 $ 47,099 $ 18,588 Capitalized interest 4,230 2,876 13,720 15,604 16,571 14,043 19,982 Portion of rental expense representative of interest 445 356 3,373 2,714 3,428 2,834 1,581 ------- ------- --------- -------- -------- -------- -------- $23,048 $23,724 $ 95,916 $ 95,385 $ 78,618 $ 63,976 $ 40,151 ======= ======= ========= ======== ======== ======== ======== Ratio of Earnings to Fixed Charges 2.0 3.1 (4.0) 2.3 1.7 3.6 3.3 ===== ===== ====== ===== ===== ===== ======
(1) Includes interest expense of majority-owned subsidiaries and amortization of debt issuance costs. EX-23.1 8 CONSENT OF ARTHUR ANDERSEN LLP EXHIBIT 23.1 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the application of our report dated January 27, 1999 in Newmont Mining Corporation's Form 10-K incorporated by reference in this Form S-3 to the supplemental note to the financial statements included in the Form 8-K filed by Newmont Mining Corporation on or about June 12, 1999. Additionally, as independent public accountants, we hereby consent to the use of our report and to all references to our Firm included in or made a part of this registration statement. /s/ Arthur Andersen LLP ARTHUR ANDERSEN LLP Denver, Colorado, July 12, 1999. EX-23.2 9 CONSENT OF PRICEWATERHOUSECOOPERS LLP EXHIBIT 23.2 Consent of Independent Accountants We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of Newmont Mining Corporation of our report dated February 1, 1997, except for the fifth paragraph of Note 1, which is as of March 10, 1997, pertaining to the consolidated financial statements of Sante Fe Pacific Gold Corporation and Subsidiaries which appears in Newmont Mining Corporation's Annual Report on Form 10-K for the year ended December 31, 1998. It should be noted, however, that such financial statements are not included in such Annual Report on Form 10-K. We also consent to the reference to us under the heading "Experts" in such Registration Statement. /s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP Phoenix, Arizona July 12, 1999 EX-24.1 10 POWER OF ATTORNEY - NEWMONT MINING CORP. EXHIBIT 24.1 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Joy E. Hansen and Timothy J. Schmitt his true and lawful attorney-in-fact and agent, with full power of substitution and revocation, in his name and on his behalf, to do any and all acts and things and to execute any and all instruments which said attorney-in-fact and agent may deem necessary or advisable to enable Newmont Mining Corporation (the "Corporation") to comply with the Securities Act of 1933, as amended (the "Act"), and any rules, regulations or requirements of the Securities and Exchange Commission in respect thereof, in connection with the registration under the Act of securities having an aggregate public offering price of up to, and including, $100,030,000, including power and authority to sign his name in any and all capacities (including his capacity as a Director and/or Officer of the Corporation) to a Registration Statement on Form S-3 or such other form as may be appropriate, and to any and all amendments, including post-effective amendments, to such Registration Statement, and to any and all instruments or documents filed as part of or in connection with such Registration Statement or any amendments thereto; and the undersigned hereby ratifies and confirms all that said attorney-in-fact and agent shall lawfully do or cause to be done by virtue thereof. IN WITNESS WHEREOF, the undersigned have subscribed these presents as of the 19th day of May, 1999. Signature Title --------- ----- /s/ Ronald C. Cambre _______________________________ Chairman, President and Chief Ronald C. Cambre Executive Officer and Director (Principal Executive Officer) /s/ James T. Curry, Jr. _______________________________ Director James T. Curry, Jr. /s/ Joseph P. Flannery _______________________________ Director Joseph P. Flannery /s/ Leo I. Higdon, Jr. _______________________________ Director Leo I. Higdon, Jr. /s/ Robin A. Plumbridge ________________________________ Director Robin A. Plumbridge /s/ Robert H. Quenon ________________________________ Director Robert H. Quenon /s/ Michael K. Reilly ________________________________ Director Michael K. Reilly /s/ James V. Taranik ________________________________ Director James V. Taranik /s/ William I.M. Turner, Jr. ________________________________ Director William I.M. Turner, Jr. /s/ Wayne W. Murdy _________________________________ Executive Vice President and Chief Wayne W. Murdy Financial Officer (Principal Financial Officer) /s/ Linda K. Wheeler _________________________________ Controller Linda K. Wheeler (Principal Accounting Officer) -2- EX-24.2 11 POWER OF ATTORNEY - NEWMONT GOLD COMPANY EXHIBIT 24.2 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Joy E. Hansen and Timothy J. Schmitt his true and lawful attorney-in-fact and agent, with full power of substitution and revocation, in his name and on his behalf, to do any and all acts and things and to execute any and all instruments which said attorney-in-fact and agent may deem necessary or advisable to enable Newmont Gold Company (the "Company") to comply with the Securities Act of 1933, as amended (the "Act"), and any rules, regulations or requirements of the Securities and Exchange Commission in respect thereof, in connection with the registration under the Act of the guarantee by the Company of up to $500 million in aggregate principal amount of debt securities that may be issued by Newmont Mining Corporation, including power and authority to sign his name in any and all capacities (including his capacity as a Director and/or Officer of the Corporation) to a Registration Statement on Form S-3 or such other form as may be appropriate, and to any and all amendments, including post-effective amendments, to such Registration Statement, and to any and all instruments or documents filed as part of or in connection with such Registration Statement or any amendments thereto; and the undersigned hereby ratifies and confirms all that said attorney-in-fact and agent shall lawfully do or cause to be done by virtue thereof. IN WITNESS WHEREOF, the undersigned have subscribed these presents as of the 10th day of February, 1999. Signature Title - --------- ----- /s/ Ronald C. Cambre Chairman, President and Chief - ------------------------ Executive Officer and Director Ronald C. Cambre (Principal Executive Officer) /s/ Wayne W. Murdy Executive Vice President, Chief - ------------------------ Financial Officer and Director Wayne W. Murdy (Principal Financial Officer) /s/ Lawrence T. Kurlander Director - ------------------------- Lawrence T. Kurlander /s/ Joy E. Hansen Director - ------------------------- Joy E. Hansen /s/ Linda K. Wheeler Vice President and Controller - ------------------------- (Principal Accounting Officer) Linda K. Wheeler EX-25.1 12 FORM T-1 SENIOR INDENTURE EXHIBIT 25.1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ___________________________ FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE Check if an application to determine eligibility of a Trustee pursuant to Section 305 (b)(2) ____ ________________________ CITIBANK, N.A. (Exact name of trustee as specified in its charter) 399 Park Avenue, New York, New York 13-5266470 (Address of principal executive office) (I.R.S. employer identification no.) 10043 (Zip Code) _______________________ Newmont Mining Corporation (Exact name of obligor as specified in its charter) Delaware 13-1806811 (State or other jurisdiction of (I.R.S. employer identification no.) incorporation or organization) 1700 Lincoln Street Denver, CO 80203 (Address of principal executive offices) (Zip Code) _________________________ Guaranteed Senior Debt Securities (Title of the indenture securities) Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Name Address ---- ------- Comptroller of the Currency Washington, D.C. Federal Reserve Bank of New York New York, NY Federal Deposit Insurance Corporation Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as exhibits hereto. Exhibit 1 - Copy of Articles of Association of the Trustee, as now in effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983) Exhibit 2 - Copy of certificate of authority of the Trustee to commence business. (Exhibit 2 to T-1 to Registration Statement No. 2-29577). Exhibit 3 - Copy of authorization of the Trustee to exercise corporate trust powers. (Exhibit 3 to T-1 to Registration Statement No. 2- 55519) Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to T-1 to Registration Statement No. 33-34988) Exhibit 5 - Not applicable. Exhibit 6 - The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to Registration Statement No. 33-19227.) Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A. (as of March 31, 1999- attached) Exhibit 8 - Not applicable. Exhibit 9 - Not applicable. __________________ SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, Citibank, N.A., a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York and State of New York, on the 8th day of July, 1999. CITIBANK, N.A. By /s/ Florence Mills --------------------- (Authorized Officer) Charter No. 1461 Northeastern District REPORT OF CONDITION CONSOLIDATING DOMESTIC AND FOREIGN SUBSIDIARIES OF Citibank, N.A. of New York in the State of New York, at the close of business on March 31, 1999, published in response to call made by Comptroller of the Currency, under Title 12, United States Code, Section 161. Charter Number 1461 Comptroller of the Currency Northeastern District. ASSETS Thousands of dollars Cash and balances due from de- pository institutions: Noninterest-bearing balances and currency and coin ........... $ 7,997,000 Interest-bearing balances ....... 12,201,000 Held-to-maturity securities ............. 0 Available-for-sale securities ........... 36,050,000 Federal funds sold and securities purchased under agreements to resell ............ 8,658,000 Loans and lease financing receivables: Loans and Leases, net of un- earned income ................... $ 189,886,000 LESS: Allowance for loan and lease losses 4,674,000 Loans and leases, net of un- --------- earned income, allowance, and reserve ..................... $ 185,212,000 Trading assets .......................... 31,195,000 Premises and fixed assets (includ- ing capitalized leases) ......... 3,911,000 Other real estate owned ................. 400,000 Investments in unconsolidated subsidiaries and associated com- panies .......................... 1,128,000 Customers' liability to this bank on acceptances outstanding ...... 1,426,000 Intangible assets ....................... 3,560,000 Other assets ............................ 12,578,000 ------------- TOTAL ASSETS ............................ $ 304,316,000 ============= LIABILITIES Deposits: In domestic offices ............. $ 40,444,000 Noninterest- bearing ......................... $ 13,607,000 Interest- bearing ......................... 26,837,000 In foreign offices, Edge and Agreement subsidiaries, and IBFs ............................ 173,560,000 Noninterest- bearing ............ 11,287,000 Interest- bearing ............ 162,273,000 Federal funds purchased and =========== securities sold under agree- ments to repurchase ............. 6,977,000 Trading liabilities ..................... 25,422,000 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): With a remaining maturity of one year or less .................... 11,454,000 With a remaining maturity of more than one year through three years 1,569,000 With a remaining maturity of more than three years ................ 2,156,000 Bank's liability on acceptances ex- ecuted and outstanding .......... 1,500,000 Subordinated notes and debentures ...................... 6,600,000 Other liabilities ....................... 14,406,000 ------------- TOTAL LIABILITIES ....................... $ 284,088,000 EQUITY CAPITAL ============= Perpetual preferred stock and related surplus ............. 0 Common stock ............................ $ 751,000 Surplus ................................. 9,524,000 Undivided profits and capital re- serves .......................... 10,651,000 Net unrealized holding gains (losses) on available-for-sale securities 31,000 Accumulated net gains (losses) on cash flow hedges ............. 0 Cumulative foreign currency translation adjustments ......... (729,000) -------------- TOTAL EQUITY CAPITAL .................... $ 20,228,000 TOTAL LIABILITIES, LIMITED- ============== LIFE PREFERRED STOCK, AND EQUITY CAPITAL .................. $ 304,316,000 ============== I, Roger W. Trupin, Controller of the above- named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief. ROGER W. TRUPIN CONTROLLER We, the undersigned directors, attest to the correctness of this Report of Condition. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct. PAUL J. COLLINS JOHN S. REED WILLIAM R. RHODES DIRECTORS EX-25.2 13 FORM T-1 SUBORDINATED INDENTURE EXHIBIT 25.2 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ___________________________ FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE Check if an application to determine eligibility of a Trustee pursuant to Section 305 (b)(2) ____ ________________________ CITIBANK, N.A. (Exact name of trustee as specified in its charter) 399 Park Avenue, New York, New York 13-5266470 (Address of principal executive office) (I.R.S. employer identification no.) 10043 (Zip Code) _______________________ Newmont Mining Corporation (Exact name of obligor as specified in its charter) Delaware 13-1806811 (State or other jurisdiction of (I.R.S. employer identification no.) incorporation or organization) 1700 Lincoln Street Denver, CO 80203 (Address of principal executive offices) (Zip Code) _________________________ Guaranteed Subordinated Debt Securities (Title of the indenture securities) Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Name Address ---- ------- Comptroller of the Currency Washington, D.C. Federal Reserve Bank of New York New York, NY Federal Deposit Insurance Corporation Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as exhibits hereto. Exhibit 1 - Copy of Articles of Association of the Trustee, as now in effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983) Exhibit 2 - Copy of certificate of authority of the Trustee to commence business. (Exhibit 2 to T-1 to Registration Statement No. 2- 29577). Exhibit 3 - Copy of authorization of the Trustee to exercise corporate trust powers. (Exhibit 3 to T-1 to Registration Statement No. 2- 55519) Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to T-1 to Registration Statement No. 33-34988) Exhibit 5 - Not applicable. Exhibit 6 - The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to Registration Statement No. 33-19227.) Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A. (as of March 31, 1999- attached) Exhibit 8 - Not applicable. Exhibit 9 - Not applicable. __________________ SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, Citibank, N.A., a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York and State of New York, on the 8th day of July, 1999. CITIBANK, N.A. By /s/ Florence Mills ---------------------- (Authorized Officer) Charter No. 1461 Northeastern District REPORT OF CONDITION CONSOLIDATING DOMESTIC AND FOREIGN SUBSIDIARIES OF Citibank, N.A. of New York in the State of New York, at the close of business on March 31, 1999, published in response to call made by Comptroller of the Currency, under Title 12, United States Code, Section 161. Charter Number 1461 Comptroller of the Currency Northeastern District. ASSETS Thousands of dollars Cash and balances due from de- pository institutions: Noninterest-bearing balances and currency and coin ........... $ 7,997,000 Interest-bearing balances ....... 12,201,000 Held-to-maturity securities ............. 0 Available-for-sale securities ........... 36,050,000 Federal funds sold and securities purchased under agreements to resell ............ 8,658,000 Loans and lease financing receivables: Loans and Leases, net of un- earned income ................... $ 189,886,000 LESS: Allowance for loan and lease losses 4,674,000 Loans and leases, net of un- --------- earned income, allowance, and reserve ..................... $ 185,212,000 Trading assets .......................... 31,195,000 Premises and fixed assets (includ- ing capitalized leases) ......... 3,911,000 Other real estate owned ................. 400,000 Investments in unconsolidated subsidiaries and associated com- panies .......................... 1,128,000 Customers' liability to this bank on acceptances outstanding ...... 1,426,000 Intangible assets ....................... 3,560,000 Other assets ............................ 12,578,000 ------------- TOTAL ASSETS ............................ $ 304,316,000 ============= LIABILITIES Deposits: In domestic offices ............. $ 40,444,000 Noninterest- bearing ......................... $ 13,607,000 Interest- bearing ......................... 26,837,000 In foreign offices, Edge and Agreement subsidiaries, and IBFs ............................ 173,560,000 Noninterest- bearing ............ 11,287,000 Interest- bearing ............ 162,273,000 Federal funds purchased and =========== securities sold under agree- ments to repurchase ............. 6,977,000 Trading liabilities ..................... 25,422,000 Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): With a remaining maturity of one year or less .................... 11,454,000 With a remaining maturity of more than one year through three years 1,569,000 With a remaining maturity of more than three years ................ 2,156,000 Bank's liability on acceptances ex- ecuted and outstanding .......... 1,500,000 Subordinated notes and debentures ...................... 6,600,000 Other liabilities ....................... 14,406,000 ------------- TOTAL LIABILITIES ....................... $ 284,088,000 EQUITY CAPITAL ============= Perpetual preferred stock and related surplus ............. 0 Common stock ............................ $ 751,000 Surplus ................................. 9,524,000 Undivided profits and capital re- serves .......................... 10,651,000 Net unrealized holding gains (losses) on available-for-sale securities 31,000 Accumulated net gains (losses) on cash flow hedges ............. 0 Cumulative foreign currency translation adjustments ......... (729,000) -------------- TOTAL EQUITY CAPITAL .................... $ 20,228,000 TOTAL LIABILITIES, LIMITED- ============== LIFE PREFERRED STOCK, AND EQUITY CAPITAL .................. $ 304,316,000 ============== I, Roger W. Trupin, Controller of the above- named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief. ROGER W. TRUPIN CONTROLLER We, the undersigned directors, attest to the correctness of this Report of Condition. We declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is true and correct. PAUL J. COLLINS JOHN S. REED WILLIAM R. RHODES DIRECTORS -----END PRIVACY-ENHANCED MESSAGE-----