As filed with the Securities and Exchange Commission on June 23, 1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NEWMONT GOLD COMPANY
(Exact name of Registrant as specified in its charter)
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<S> <C> <C>
Delaware 1700 Lincoln Street 13-2526632
(State or other jurisdiction of) Denver, Colorado 80203 (I.R.S. Employer
incorporation or organization) (303) 863-7414 Identification No.)
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(Address, including zip code, and telephone number,
including area code, of registrant's principal 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. Francis J. Morison, Esq.
White & Case Davis Polk & Wardwell
1155 Avenue of the Americas 450 Lexington Avenue
New York, New York 10036 New York, New York 10017
(212) 819-8200 (212) 450-4000
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)
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CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum Amount of
Title of each class of Amount to be offering price aggregate offering registration
securities to be registered registered (1) per unit (2) price (1)(2) fee
<S> <C> <C> <C> <C>
Debt Securities...... US$150,000,000 100% US$150,000,000 $51,724.14
(1) Or, if any Debt Securities are issued (a) with a principal amount denominated in a foreign currency, or a unit of two or
more currencies, such principal amount as shall result (when added to the principal amount of other Debt Securities issued
hereunder) in an aggregate initial offering price of all Debt Securities covered hereby equivalent to $150,000,000, or (b)
at an original issue discount, such greater principal amount as shall result (when added to the principal amount of other
Debt Securities issued hereunder) in aggregate proceeds to Newmont Gold Company of $150,000,000.
(2) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457 under the Securities Act
of 1933, as amended.
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The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
Registrant 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.
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NEWMONT GOLD COMPANY
Debt Securities
Newmont Gold Company (the "Company") may from time to time
offer its debt securities consisting of debentures, notes or other
unsecured evidences of indebtedness ("Debt Securities"). The Debt
Securities may be offered as separate series in amounts, at prices and
on terms to be determined at the time of sale and to be set forth in
supplements to this Prospectus. The Company may sell Debt Securities
to or through underwriters, and also may sell Debt Securities directly
to other purchasers or through agents. See "Plan of Distribution."
The terms of the Debt Securities, including, where
applicable, the specific designation, aggregate principal amount,
denominations (which may be in United States dollars, in any other
currency or in a composite currency), maturity, rate (which may be
fixed or variable) and time of payment of interest, if any, terms for
redemption or early repayment at the option of the Company or the
holder, terms for sinking or purchase fund payments, the initial public
offering price, the names of any underwriters or agents, the principal
amounts, if any, to be purchased by underwriters or agents and the
compensation, if any, of such underwriters or agents, the net proceeds
to the Company and the other terms in connection with the offering and
sale of the Debt Securities in respect of which this Prospectus is
being delivered, are set forth in the accompanying Prospectus
Supplement ("Prospectus Supplement").
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION,
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1994.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "1934 Act"), and,
in accordance therewith, files reports, proxy statements and other
information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements and other information
can be inspected and copied at the public reference facilities
maintained by the Commission at Judiciary Plaza, Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549 and at the following regional
offices of the Commission: Seven World Trade Center, Suite 1300, New
York, New York 10048; Northwestern Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies of such material
can be obtained at prescribed rates by writing to the Commission,
Public Reference Section, 450 Fifth Street, N.W., Washington, D.C.
20549. Such material can also be inspected at the offices of the New
York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005 on
which exchange the common stock of the Company is listed.
This Prospectus constitutes part of a registration statement
filed by the Company with the Commission under the Securities Act of
1933, as amended (the "Act"). This Prospectus omits certain of the
information contained in the registration statement, and reference is
hereby made to the registration statement and to the exhibits relating
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thereto for further information with respect to the Company and the
Debt Securities offered hereby. Any statements contained herein
concerning the provisions of any document are not necessarily complete,
and, in each instance, reference is made to the copy of such document
filed as an exhibit to the registration statement or otherwise filed
with the Commission. Each such statement is qualified in its entirety
by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference in this
Prospectus the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1993, the Company's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1994 and the Company's Current Report
on Form 8-K dated April 5, 1994, which have been filed with the
Commission. All documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this
Prospectus and prior to the termination of the offering of the Debt
Securities offered hereby shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of
filing of such documents. Any statement contained herein or in a
document all or a portion of which is incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person,
including beneficial owners, to whom a copy of this Prospectus has been
delivered, on the request of any such person, a copy of any or all of
the documents referred to above which have been or may be incorporated
in this Prospectus by reference, other than exhibits to such documents
(unless such exhibits are specifically incorporated by reference into
such documents). Request for such copies should be directed to the
Office of the Secretary, Newmont Gold Company, 1700 Lincoln Street,
Denver, Colorado 80203, telephone: (303) 863-7414.
THE COMPANY
Newmont Gold Company (the "Company") is a worldwide Company
engaged in gold production, exploration for gold and acquisition of
gold properties. Newmont Gold's largest stockholder, Newmont Mining
Corporation, owns approximately 89.22% of the outstanding common shares
and 100% of the preferred shares of the Company.
Based on 1993 production as set forth in published reports,
the Company is the largest producer of gold from North American
operations. The Company produces gold on the Carlin Trend in Nevada.
The Company also produces gold through a 38% owned joint venture in
Peru, which commenced operations in August 1993. The Company
additionally has a 50% owned joint venture in Uzbekistan and an 80%
owned joint venture in Indonesia, both of which are scheduled to
commence gold production in 1995. The Company also owns 100% of
Newmont Exploration Limited ("NEL"), which, together with various other
affiliates, explore worldwide for gold. Management believes that its
1994 exploration and development budget is one of the largest in the
minerals industry based on published information.
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Newmont Gold, incorporated under the laws of Delaware,
maintains its principal executive offices at 1700 Lincoln Street,
Denver, Colorado 80203 (telephone: 303-863-7414).
RATIO OF EARNINGS TO FIXED CHARGES
Presented herein, are the ratios of earnings to fixed charges
for the Company for the quarter ended March 31, 1994, and for the
Company's parent, Newmont Mining Corporation ("Newmont Mining"), for
the five years ended December 31, 1993. Effective January 1, 1994, the
Company acquired substantially all the assets and assumed substantially
all the liabilities of Newmont Mining. As a result, the Company's
capital structure is essentially the same as Newmont Mining's. In that
the Company's financial results had been fully consolidated into
Newmont Mining's and the Company's capital structure is now essentially
that of Newmont Mining, management believes that Newmont Mining's
historical consolidated ratio of earnings to fixed charges for the five
years ended December 31, 1993 is more relevant than the Company's and
thus they are presented herein. They represent essentially what the
Company's ratios would have been had it acquired Newmont Mining's
assets and assumed its liabilities at the beginning of 1989. The last
year the Company itself had significant fixed charges was 1989, and the
ratio of earnings to fixed charges for that year was 11.6.
The ratio of earnings to fixed charges for the Company was
4.7 for the three months ended March 31, 1994. The ratio of earnings
to fixed charges for Newmont Mining was 6.3, 6.5, 10.3, 6.6 and 2.2 for
the years ended December 31, 1993, 1992, 1991, 1990 and 1989,
respectively. The ratio of earnings to fixed charges was calculated
based on information from the Company's and Newmont Mining's books and
records. In computing the ratio of earnings to fixed charges,
"earnings" consists of income from continuing operations before
provision for income taxes and extraordinary items with adjustments for
interest expense (excluding capitalized interest), the amortization of
previously capitalized interest, minority interests of subsidiaries
with fixed charges and undistributed income of less than fifty percent
owned affiliates. "Fixed charges" consists of interest expense
(including amortization of debt issuance expense), capitalized interest
and one-third of rental expense (which the Company believes is a
reasonable approximation of the interest factor of such rental
expense). The Company guarantees certain third party debt which had
total interest obligations of $0.2 million, $0.8 million, $3.3 million,
$4.0 million, $4.5 million and $5.0 million for the three months ended
March 31, 1994 and the years ended December 31, 1993, 1992, 1991, 1990
and 1989, respectively. The Company and Newmont Mining have not been
required to pay any of these amounts, nor does the Company expect to
have to pay any amounts; therefore, such amounts have not been
included in the ratio of earnings to fixed charges.
USE OF PROCEEDS
The net proceeds to the Company from the sale of the Debt
Securities will be used for general corporate purposes unless otherwise
set forth in the Prospectus Supplement.
DESCRIPTION OF DEBT SECURITIES
General
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The Debt Securities offered hereby will be issuable in one or
more series under an Indenture, dated as of , 1994 (the
"Indenture"), between the Company and The Bank of New York, as Trustee
(the "Trustee"). The following statements are subject to the detailed
provisions of the Trust Indenture Act of 1939, as amended ("TIA"), and
the Indenture, the form of which is filed as an exhibit to the
Registration Statement of which this Prospectus forms a part. Wherever
references are made to particular provisions of the Indenture or terms
defined therein are referred to, such provisions or definitions are
incorporated by reference as part of the statements made, and such
statements are qualified in their entirety by such references.
The aggregate principal amount of Debt Securities which can
be issued under the Indenture is unlimited. Except as otherwise
provided in the Prospectus Supplement relating to a particular series
of Debt Securities, the Indenture does not limit the amount of other
debt, secured or unsecured, which may be issued by the Company. The
Debt Securities may be issued in one or more series, as may be
authorized from time to time by the Company. (Section 2.5)
Reference is made to the Prospectus Supplement relating to
the particular series of Debt Securities offered hereby (the "Offered
Debt Securities") for the following terms, where applicable, of the
Offered Debt Securities: (1) the designation, the aggregate principal
amount and the authorized denominations of the Offered Debt Securities;
(2) the percentage of principal amount at which the Offered Debt
Securities will be issued; (3) the currency or currencies in which the
principal of and interest, if any, on the Offered Debt Securities will
be payable; (4) the date or dates on which the Offered Debt Securities
will mature; (5) the rate or rates at which the Offered Debt Securities
will bear interest, if any, or the method by which such rate or rates
will be determined; (6) the dates on which and places at which such
interest, if any, will be payable; (7) the terms of any mandatory or
optional repayment or redemption (including any sinking fund); (8) any
index used to determine the amount of payments of principal of and/or
interest, if any, on such Offered Debt Securities; (9) the payment of
any additional amounts with respect to the Offered Debt Securities;
(10) whether any Offered Debt Securities will be issued as discounted
Debt Securities; and (11) any other terms of the Offered Debt
Securities. The Indenture provides that Debt Securities of a single
series may be issued at various times, with different maturity dates
and redemption and repayment provisions, if any, and may bear interest
at different rates. (Section 2.5) Interest, if any, on the Offered
Debt Securities is to be payable to the persons, and in the manner,
specified in the Prospectus Supplement relating to such Offered Debt
Securities.
The Debt Securities will be unsecured, unsubordinated
indebtedness of the Company and will rank on a parity with all other
unsecured and unsubordinated indebtedness of the Company.
Some of the Debt Securities may be issued as discounted Debt
Securities (bearing no interest or interest at a rate which at the time
of issuance is below market rates) to be sold at a substantial discount
below their stated principal amount. Federal income tax consequences
and other special considerations applicable to any such discounted Debt
Securities will be described in the Prospectus Supplement relating
thereto.
The Prospectus Supplement for a particular series may
indicate terms for redemption at the option of a holder. Unless
otherwise indicated in the Prospectus Supplement, the covenants
contained in the Indenture and the Debt Securities would not provide
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for redemption at the option of a holder nor necessarily afford Holders
protection in the event of a highly leveraged or other transaction that
may adversely affect holders.
Global Notes, Delivery and Form
If so provided in the Prospectus Supplement accompanying this
Prospectus, the Debt Securities may be issued in the form of one or
more fully registered Global Notes that will be deposited with, or on
behalf of, The Depository Trust Company, New York, New York (the
"Depository") and registered in the name of the Depository's nominee.
The Depository currently limits the maximum denomination of any single
Global Note to $150,000,000. Unless otherwise provided in the
Prospectus Supplement, "Global Note" refers to the Global Note or
Global Notes representing an entire issue of Debt Securities. The
information in this section concerning the Depository and its book-
entry system has been obtained from the Depository. The Company takes
no responsibility for the accuracy thereof.
Except as set forth below, a Global Note may be transferred
in whole and not in part, only to another nominee of the Depository or
to a successor of the Depository or its nominee.
The Depository has advised that it 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 Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange
Act. The Depository holds securities for its participating
organizations (collectively, the "Participants") and facilitates the
clearance and settlement of transactions in such securities between
Participants through electronic book-entry changes in accounts of its
Participants, thereby eliminating the need for physical movement of
securities certificates. Participants include securities brokers and
dealers, banks and trust companies, clearing corporations and certain
other organizations. Access to the Depository's system is also
available to other such banks, brokers, dealers and trust companies
that clear through or maintain a custodial relationship with a
Participant, either directly or indirectly (collectively, the "indirect
participants"). Persons who are not Participants may beneficially own
securities held by or on behalf of the Depository only through
Participants or indirect participants. The Rules applicable to the
Depository and its Participants are on file with the Commission.
The Depository also has advised that pursuant to procedures
established by it (i) upon delivery to the Depository of a Global Note,
the Depository will credit the accounts of Participants designated by
the Underwriter or Underwriters, if any, with the principal amount of
the Debt Securities purchased by such Underwriter or Underwriters, and
(ii) ownership of beneficial interests in a Global Note will be shown
on, and the transfer of the ownership thereof will be effected only
through, records maintained by the Depository (with respect to
Participants), the Participants (with respect to indirect participants
and certain beneficial owners) and 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 securities which they own. Consequently, the ability to transfer
beneficial interests in a Global Note is limited to such extent.
So long as a nominee of the Depository is the registered
owner of a Global Note, such nominee for all purposes will be
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considered the sole owner or holder of such Debt Securities under the
Indenture. Except as provided below, owners of beneficial interests in
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 Indenture for any
purpose, including with respect to the giving of any directions,
instructions or approval to the Trustee thereunder. However, the
Depository has advised 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, attached to which proxy will be a list of
Participants' positions in the relevant security as of the record date
for a consent or vote.
Neither the Company, the Trustee, any paying agent nor any
registrar of the Debt Securities will have any responsibility or
liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests in a Global Note, or for
maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Principal and interest payments on the Debt Securities
registered in the name of the Depository's nominee will be made in
immediately available funds to the Depository's nominee as the
registered owner of the Global Note. Under the terms of the Indenture,
the Company and the Trustee will treat the persons in whose names the
Debt Securities are registered as the owners of such Debt Securities
for the purpose of receiving payment of principal and interest on such
Debt Securities and for all other purposes whatsoever. Therefore,
neither the Company, the Trustee nor any payment agent has or will have
any responsibility or liability for the payment of principal or
interest on the Debt Securities to owners of beneficial interests in a
Global Note or for any other matter with respect to such owners.
The Depository has advised the Company and the Trustee that
its current practice is, upon receipt of any payment of principal or
interest, to immediately credit the accounts of the Participants with
such payment in amounts proportionate to their respective holdings in
principal amount of beneficial interests in a Global Note as shown in
the records of the Depository unless the Depository has reason to
believe that it will not receive payment on payable date. The
Depository'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 and indirect participants to owners of
beneficial interests in a Global Note will be governed by standing
instructions and customary practices, as is now the case with
securities held for the accounts of customers in bearer form or regis-
tered in "street name," and will be the responsibility of the
Participants or indirect participants and not of the Depository, the
Company or the Underwriter or Underwriters, if any, subject to any
statutory or regulatory requirement as may be in effect from time to
time.
Although the Depository has agreed to the foregoing
procedures in order to facilitate transfers of beneficial interests in
a Global Note between Participants, it is under no obligation to
perform or continue to perform such procedures and such procedures may
be discontinued at any time. If one or more Global Notes are
outstanding and if the Depository is at any time unwilling or unable to
continue as depository and a successor depository is not appointed by
the Company within 90 days, the Company will issue Debt Securities in
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definitive form in exchange for a Global Note. In addition, the
Company may at any time determine not to have the Debt Securities
represented by a Global Note and, in such event, will issue Debt
Securities in definitive form in exchange for a Global Note. In either
instance, an owner of a beneficial interest in a Global Note will be
entitled to have Debt Securities equal in principal amount to such
beneficial interest registered in its name and will be entitled to
physical delivery of such Debt Securities in definitive form. Debt
Securities so issued in definitive form will be issued in denominations
of $1,000 and integral multiples thereof, in registered form only,
without coupons, and the Company will maintain in the Borough of
Manhattan, the City of New York, one or more offices or agencies where
such Notes may be presented for payment and may be transferred or
exchanged. No service charge will be made for any transfer or exchange
of such Global Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge or payment in
connection therewith.
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, Global Notes held by the Depository
will trade in the Depository's Same-Day Funds Settlement System until
maturity, and secondary market trading activity in such Notes will
therefore be required by the Depository to 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
such Notes.
Certain Covenants
Certain Definitions Applicable to Covenants. "Attributable
Debt" shall mean, as to any particular lease under which the Company is
at the time liable, at any date as of which the amount thereof is to be
determined, the total net amount of rent required to be paid by the
Company under such lease during the remaining term thereof, discounted
from the respective due dates thereof to such date at the rate of
interest per annum implicit in the terms of such lease (as determined
by any two of the following: the chairman, the vice chairman, the
president, any vice president, the treasurer, the controller or the
secretary of the Company) compounded semiannually. 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.
"Consolidated Net Tangible Assets" shall mean the aggregate
amount of assets (less applicable reserves and other properly
deductible items) after deducting therefrom (i) 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 (ii) all goodwill, all as shown in the most
recent consolidated balance sheet of the Company and its Subsidiaries
computed in accordance with generally accepted accounting principles.
<PAGE>
"Funded Debt" shall mean 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 extendible beyond 12 months
from such date at the option of the borrower.
"Principal Property" shall mean 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, however, that Principal Property shall not include
(i) any mine, plant or facility which, in the opinion of the Board of
Directors of the Company, is not of material importance to the total
business conducted by the Company and its Subsidiaries as an entirety
or (ii) any portion of a particular mine, plant or facility which, in
the opinion of the Company, is not of material importance to the use or
operation of such mine, plant or facility.
"Restricted Subsidiary" shall mean any Subsidiary (i)
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 (ii) which owns a Principal Property; provided, however,
that Restricted Subsidiary shall not include any Subsidiary the primary
business of which consists of financing operations in connection with
leasing and conditional sales transactions on behalf of the Company and
its Subsidiaries, and/or purchasing accounts receivable and/or making
loans secured by accounts receivable or inventory, or which is
otherwise primarily engaged in the business of a finance company.
"Subsidiary" shall mean any corporation of which at least a
majority of the outstanding stock having by the terms thereof ordinary
voting power for the election of directors of such corporation
(irrespective of whether or not at the time stock of any other class or
classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time directly or
indirectly owned by the Company, or by one or more other Subsidiaries,
or by the Company and one or more other Subsidiaries. (Section 1.1)
Limitation on Liens. For the benefit of each series of Debt
Securities issued under the Indenture, the Company will not, nor will
it 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 called "Debt") if such
Debt is secured by pledge of, or mortgage, deed of trust or other lien
on any Principal Property owned by the Company or any Restricted
Subsidiary, or any shares of stock or Debt of any Restricted Subsidiary
(such pledges, mortgages, deeds of trust and other liens being
hereinafter called "Mortgage" or "Mortgages"), without effectively pro-
viding that the Debt Securities of all series (together with, if the
Company shall so determine, any other Debt of the Company or such
Restricted Subsidiary then existing or thereafter created which is not
subordinate to the Debt Securities) shall be secured equally and
ratably with (or prior to) such secured Debt, so long as such secured
Debt shall be so secured, unless, after giving effect thereto, the
aggregate principal amount of all such secured Debt which would
otherwise be prohibited, plus all Attributable Debt of the Company and
its Restricted Subsidiaries in respect of sale and leaseback
transactions (as defined below) which would otherwise be prohibited by
the covenant limiting sale and leaseback transactions described below
<PAGE>
would not exceed the sum of 10% of Consolidated Net Tangible Assets;
provided, however, that these restrictions shall not apply to, and
there shall be excluded from secured Debt in any computation under
these restrictions, Debt secured by: (i) Mortgages on property of, or
on any shares of stock or Debt of, any corporation existing at the time
such corporation becomes a Restricted Subsidiary; (ii) Mortgages to
secure indebtedness of any Restricted Subsidiary to the Company or to
another Restricted Subsidiary; (iii) Mortgages for taxes, assessments
or governmental charges or levies in each case (a) not then due and
delinquent or (b) the validity of which is being contested in good
faith by appropriate proceedings, and materialmen's, mechanics',
carriers', workmen's, repairman's, landlord's or other like Mortgages,
or deposits to obtain the release of such Mortgages; (iv) 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; (v) 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; (vi) 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; (vii) 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 Debt existing at the time of
acquisition of such property by the Company or the Restricted
Subsidiary (including acquisition through merger or consolidation or
through purchase, transfer of the properties of a corporation 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 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; (viii) Mortgages existing at the date of the
Indenture; and (ix) 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 (i) to
(viii), inclusive; provided, however, that (a) 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 (b) the
Debt secured by such Mortgage at such time is not increased; and
provided further, that these restrictions shall not apply to (i) any
gold-based loan or forward sale arrangement and (ii) Mortgages on
property owned or leased by the Company or any Restricted Subsidiary or
in which the Company or any Restricted Subsidiary owns an interest to
secure the Company's or a Restricted Subsidiary's proportionate share
of any payments required to be made to any Person incurring the expense
of developing, exploring, or conducting operations for the recovery,
processing or sale of the mineral resources of such owned or leased
property, and any such loan, arrangement or payment referred to in
clauses (i) and (ii) of this proviso shall not be deemed to constitute
<PAGE>
secured Debt and, shall not be included in any computation under these
restrictions. (Section 3.4)
Limitation on Sales and Leasebacks. For the benefit of each
series of Debt Securities issued under the Indenture, the Company will
not, nor will it permit any Restricted Subsidiary to, enter into any
arrangement with any bank, insurance company or other lender or
investor (not including the Company or any Restricted Subsidiary), or
to which any such lender or investor is party, providing for the
leasing by the Company or any such Restricted Subsidiary for a period,
including renewals, in excess of three years, of any Principal Property
owned by the Company or such Restricted Subsidiary which has been or is
to be sold or transferred more than 270 days after the acquisition
thereof or after the completion of construction and commencement of
full operation thereof, by the Company or any such Restricted
Subsidiary to such lender or investor or to any person to whom funds
have been or are to be advanced by such lender or investor on the
security of such Principal Property (herein referred to as a "sale and
leaseback transaction") unless either: (i) the Company or such
Restricted Subsidiary could create Debt secured by a Mortgage on the
Principal Property to be leased back in an amount equal to the
Attributable Debt with respect to such sale and leaseback transaction
without equally and ratably securing the Debt Securities of all series
pursuant to the provisions of the covenant on limitation on liens
described above (which provisions include the exceptions set forth in
clauses (i) through (ix) of such covenant) or (ii) the Company, within
180 days after the sale or transfer shall have been made by the Company
or by any such Restricted Subsidiary, applies an amount equal to the
greater of (a) the net proceeds of the sale of the Principal Property
sold and leased back pursuant to such arrangement or (b) 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 vice chairman, the president, any vice
president, the treasurer, the controller or the secretary of the
Company) to (x) the purchase of property, facilities or equipment
(other than the property, facilities or equipment involved in such
sale) having a value at least equal to the net proceeds of such sale or
(y) the retirement of Funded Debt of the Company or any Restricted
Subsidiary; provided, however, that the amount required to be applied
to the retirement of Funded Debt of the Company shall be reduced by
(a) the principal amount of any Debt Securities of any series (or, if
the Debt Securities of any series are original issue discount Debt
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 4.1 of the Indenture or if the Debt 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 accel-
eration 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 of the Indenture) delivered within 180 days after such
sale or transfer to the Trustee for retirement and cancellation and
(b) the principal amount of Funded Debt, other than the Debt Securities
of any series, voluntarily retired by the Company within 180 days after
such sale or transfer. Notwithstanding the foregoing, no retirement
referred to in this clause (ii) may be effected by payment at maturity
or pursuant to any mandatory sinking fund payment or any mandatory
prepayment provision. (Section 3.5)
Consolidation, Merger, Sale, Conveyance and Lease. The Indenture
permits the Company to consolidate or merge with or into any other
entity or entities, or to sell, convey or lease all or substantially
all of its property to any other entity; provided, however, (i) that
the person (if other than the Company) formed by such consolidation, or
<PAGE>
into which the Company is merged or which acquires or leases
substantially all of the property of the Company, expressly assumes the
Company's obligations on the Debt Securities and under the Indenture
and (ii) that the Company or such successor entity shall not
immediately after such consolidation or merger, or such sale,
conveyance or lease, be in default in the performance of any covenant
or condition of the Indenture. (Article Eight)
Events of Default, Waiver and Notice
As to any series of Debt Securities, an Event of Default is
defined in the Indenture as (a) default in the payment of any
installment of interest, if any, on the Debt Securities of such series
and the continuance of such default for a period of 30 days;
(b) default in the payment of the principal of (and premium, if any,
on) any of the Debt Securities of such series when due, whether at
maturity, upon redemption, by declaration or otherwise; (c) default in
the payment of a sinking fund installment, if any, on the Debt
Securities of such series; (d) default by the Company in the
performance of any other covenant or agreement contained in the
Indenture for the benefit of such series and the continuance of such
default for a period of 90 days after written notice as provided in the
Indenture; (e) certain events of bankruptcy, insolvency and
reorganization of the Company; and (f) any other Event of Default
established with respect to Debt Securities of that series. (Sections
2.5 and 4.1)
The Trustee shall, within 90 days after the occurrence of a
default with respect to Debt Securities of any series, give all holders
of Debt Securities of such series then outstanding notice of all
uncured defaults known to it (the term default to mean the event
specified above without grace periods); provided that, except in the
case of a default in the payment of principal (and premium, if any) or
interest, if any, on any Debt Security of any series, or in the payment
of any sinking fund installment with respect to Debt Securities of any
series, the Trustee shall be protected in withholding such notice if it
in good faith determines that the withholding of such notice is in the
interest of all holders of Debt Securities of such series then
outstanding. (TIA)
The Indenture provides that if an Event of Default with
respect to Debt Securities of any series at the time outstanding shall
occur and be continuing, either the Trustee or the holders of at least
25% in aggregate principal amount (calculated as provided in the
Indenture) of the Debt Securities of such series then outstanding may
declare the principal (or, in the case of original issue discount Debt
Securities, the portion thereof as may be specified in the Prospectus
Supplement relating to such series) of the Debt Securities of such
series and the interest accrued thereon, if any, to be due and payable
immediately. (Section 4.1)
Upon certain conditions such declarations may be annulled and
past defaults (except for defaults in the payment of principal (or
premium, if any) or interest, if any, on such Debt Securities not
theretofore cured) may be waived by the holders of not less than a
majority in aggregate principal amount (calculated as provided in the
Indenture) of the Debt Securities of such series then outstanding.
(Section 4.9)
The TIA requires that the Company file with the Trustee
annually a written statement as to the presence or absence of certain
defaults under the terms of the Indenture. (TIA)
<PAGE>
The Indenture provides that, if a default or an Event of
Default shall have occurred and be continuing, the holders of not less
than a majority in aggregate principal amount (calculated as provided
in the Indenture) of the Debt Securities of such affected series then
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 or remedy available to the Trustee, or exercising any trust
of power conferred on the Trustee by the Indenture with respect to Debt
Securities of such series. (Section 4.8)
The Indenture provides that the Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by the
Indenture at the direction of the holders of Debt Securities unless
such holders shall have offered to the Trustee reasonable security or
indemnity against expenses and liabilities. (Section 5.1(d))
Defeasance
Defeasance and Discharge. The Indenture provides that the
Company will be discharged from any and all obligations in respect of
the Debt Securities of any series (except for certain obligations to
register the transfer or exchange of Debt Securities of such series, to
replace stolen, lost or mutilated Debt Securities of such series, to
maintain paying agencies and to hold monies for payment in trust) upon
the deposit with the Trustee, in trust, of money and/or U.S. Government
Obligations (as defined in the Indenture) which through the payment of
interest and principal in respect thereof in accordance with their
terms will provide money in an amount sufficient to pay the principal
of and each installment of interest on the Debt Securities of such
series on the stated maturity of such payments in accordance with the
terms of the Indenture and the Debt Securities of such series.
(Sections 9.6 and 9.8) Such a trust may only be established if, among
other things, the Company delivers to the Trustee an opinion of counsel
(who may be counsel to the Company) stating that either (i) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling or (ii) since the date of the Indenture there has been
a change in the applicable Federal income tax law, to the effect that
holders of the Debt 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
amount and in the same manner and at the same times, as would have been
the case if such defeasance had not occurred. (Section 9.8)
Defeasance of Certain Covenants and Certain Events of
Default. The Indenture provides that the Company may omit to comply
with the covenants regarding limitations on sale and leaseback
transactions and limitations on liens described above and Section
4.1(d) of the Indenture (described in clause (d) under the caption
"Events of Default" above), which noncompliance shall not be deemed to
be an Event of Default under the Indenture and the Debt Securities of a
series, upon the deposit with the Trustee, in trust, of money and/or
U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will
provide money in an amount sufficient to pay the principal of and each
installment of interest on the Debt Securities of such series on the
stated maturity of such payments in accordance with the terms of the
Indenture and the Debt Securities of such series. The obligations of
the Company under the Indenture and the Debt Securities of such series,
other than with respect to the covenants referred to above, and the
Events of Default, other than the Event of Default referred to above,
shall remain in full force and effect. (Sections 9.7 and 9.8) Such a
trust may only be established if, among other things, the Company has
delivered to the Trustee an opinion of counsel (who may be counsel to
<PAGE>
the Company) to the effect that the holders of the Debt Securities of
such series will not recognize income, gain, or loss for Federal income
tax purposes as a result of such defeasance of certain covenants and
Events of Default and will be subject to Federal income tax on the same
amounts and in the same manner and at the same times, as would have
been the case if such deposit and defeasance had not occurred.
(Section 9.8)
In the event the Company exercises its option to omit
compliance with certain covenants of the Indenture with respect to the
Debt Securities of a series as described in the preceding paragraph and
the Debt Securities of such series are declared due and payable because
of the occurrence of any Event of Default other than an Event of
Default described in clause (d) under the caption "Events of Default"
above, the amount of money and U.S. Government Obligations on deposit
with the Trustee will be sufficient to pay amounts due on the Debt
Securities of such 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 such Event of
Default.
Modification of the Indenture
The Indenture contains provisions permitting the Company 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 outstanding Debt Securities of all series affected by
such modification (all such series voting as a single class), to modify
the Indenture or any supplemental indenture or the rights of the
holders of the Debt Securities; provided that no such modification
shall (i) extend the fixed maturity of any Debt Security, or reduce the
principal or premium amount thereof, or reduce the rate or extend the
time of payment of interest, if any, thereon, or make the principal
amount thereof or interest or premium, if any, thereon payable in any
coin or currency other than that provided in the Debt Security, or
reduce the portion of the principal amount of an original issue
discount Debt Security (or a Debt 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) due and payable
upon acceleration of the maturity thereof or the portion of the
principal amount thereof provable in bankruptcy, or reduce any amount
payable upon redemption of any Debt Security, or reduce the overdue
rate thereof, or impair, if the Debt Securities provide therefor, any
right of repayment at the option of the holder of a Debt Security,
without the consent of the holder of each Debt Security so affected, or
(ii) reduce the aforesaid percentage of Debt Securities the consent of
the holders of which is required for any such modification, without the
consent of the holder of each Debt Security so affected. (Section 7.2)
The Indenture also permits the Company and the Trustee to
amend the Indenture in certain circumstances without the consent of the
holders of any Debt Securities to evidence the merger of the Company or
the replacement of the Trustee and for certain other purposes.
(Section 7.1)
Concerning the Trustee
Except during the continuance of an Event of Default, the
Trustee shall perform only such duties as are specifically set forth in
the Indenture. During the continuance of any Event of Default, the
Trustee shall exercise such of the rights and powers vested in it under
<PAGE>
the Indenture and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs. (TIA)
The Trustee may acquire and hold Securities and, subject to
certain conditions, otherwise deal with the Company as if it were not
Trustee under the Indenture. (Section 5.3)
The Company currently conducts banking transactions with the
Trustee in the ordinary course of the Company's business.
PLAN OF DISTRIBUTION
General. The Company may sell Debt Securities to or through
underwriters or dealers, and also may sell Debt Securities directly to
other purchasers or through agents.
The distribution of the Debt Securities may be effected from
time to time in one or more transactions at a fixed price or prices,
which may be changed, at market prices prevailing at the time of sale,
at prices related to such prevailing market prices or at negotiated
prices.
In connection with the sale of Debt Securities, underwriters
may receive compensation from the Company or from purchasers of Debt
Securities for whom they may act as agents in the form of discounts,
concessions or commissions. Underwriters may sell Debt 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 and agents that participate in the distribution
of Debt Securities may be deemed to be underwriters, and any discounts
or commissions received by them from the Company and any profit on the
resale of Debt Securities by them may be deemed to be underwriting
discounts and commissions under the Act. Any such underwriter or agent
will be identified, and any such compensation received from the Company
will be described, in the Prospectus Supplement.
The Debt Securities will be a new issue of Debt Securities
with no established trading market. Underwriters and agents to whom
Debt Securities are sold by the Company for public offering and sale
may make a market in such Debt Securities, but such underwriters and
agents will not be obligated to do so and may discontinue any market
making at any time without notice. No assurance can be given as to the
liquidity of the trading market for the Debt Securities.
Under agreements which may be entered into by the Company,
underwriters, dealers and agents who participate in the distribution of
Debt Securities may be entitled to indemnification by the Company
against certain liabilities, including liabilities under the Act.
Delayed Delivery Arrangements. If so indicated in the
Prospectus Supplement, the Company will authorize underwriters or other
persons acting as the Company's agents to solicit offers by certain
institutions to purchase Debt Securities from the Company pursuant to
contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial
and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and others, but in
all cases such institutions must be approved by the Company. The
obligations of any purchaser under any such contract will be subject to
the condition that the purchase of the Offered Securities shall not at
<PAGE>
the time of delivery be prohibited under the laws of the jurisdiction
to which such purchaser is subject. The underwriters and such other
persons will not have any responsibility in respect of the validity or
performance of such contracts.
VALIDITY OF DEBT SECURITIES
The validity of the Offered Debt Securities will be passed
upon for the Company by White & Case, 1155 Avenue of the Americas, New
York, New York, and for the underwriters or agents, if any, by Davis
Polk & Wardwell, 450 Lexington Avenue, New York, New York.
EXPERTS
The audited consolidated financial statements and schedules
incorporated by reference in this Prospectus have been audited by
Arthur Andersen & Co., independent public accountants, as indicated in
their reports with respect thereto, and are incorporated by reference
herein in reliance upon the authority of said firm as experts in
auditing and accounting in giving said reports.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
<TABLE>
<S> <C>
SEC filing fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $51,724.14
Accounting fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . 2,500.00
Legal fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . 200,000.00
Blue Sky and Legal Investment
fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,000.00
Trustee's fees and expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 9,000.00
Rating agency fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71,250.00
Printing and engraving expenses . . . . . . . . . . . . . . . . . . . . . . . . 20,000.00
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,525.86
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380,000.00
*All estimates except for filing fee.
</TABLE>
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law
authorizes and empowers the Company to indemnify the directors,
officers, employees and agents of the Company 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 relationship with the Company, 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 Company 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 persons in
connection with such acts or events is not necessarily
determinative of the question of whether such persons have met
<PAGE>
the required standard of conduct and are, 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 the Company provide that the Company
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 being or having
been a director, officer, employee or agent of the Company or, at
the request of the Company, of any other corporation,
partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement 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
heirs, executors and administrators.
Item 16. Exhibits.
<TABLE>
Exhibit
Number Description of Documents
<S> <C>
1.1 - Proposed form of Underwriting Agreement relating to the Debt Securities.
1.2 - Proposed form of Distribution Agreement relating to the Debt Securities.
4.1 - Indenture dated as of , 1994 between the Company and The Bank of New
York (including forms of Debt Securities).
4.2 - Form of Floating Rate Medium Term Note.
4.3 - Form of Fixed Rate Medium Term Note.
5 - Opinion of White & Case.
12 - Computation of Ratio of Earnings to Fixed Charges.
23.1 - Consent of Arthur Andersen & Co.
23.2 - Consent of White & Case (included in Exhibit 5).
24 - Power of Attorney of certain officers and directors.
25 - Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, Indenture Trustee.
</TABLE>
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(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;
<PAGE>
(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; 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;
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 by the Registrant 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 Securities Act of 1933, 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;
(4) that, for purposes of determining any liability under
the Act, each filing of the Registrant'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; and
(5) that, for purposes of determining any liability under
the Act, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A
and contained in a form of prospectus, filed by the Registrant
pursuant to Rule 424(b)(1) or (4) under the Act shall be deemed to
be part of this registration statement as of the time it was
declared effective.
Insofar as indemnification for liabilities arising under the
Act may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the
Company has 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 the
Company of expenses incurred or paid by a director, officer or con-
trolling person of the Company 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,
the Company 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.
<PAGE>
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 22nd day of June, 1994.
NEWMONT GOLD COMPANY
By /s/ Timothy J. Schmitt
Timothy J. Schmitt
Vice President, Secretary and
Assistant General Counsel
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.
<TABLE>
Signature Title Date
<S> <C> <C>
* Director June 22, 1994
Rudolph I.J. Agnew
* Director June 22, 1994
John P. Bolduc
* Vice Chairman Chief Executive Officer and
Ronald C. Cambre Director (Principal Executive Officer) June 22, 1994
* Director June 22, 1994
Joseph P. Flannery
* Director June 22, 1994
Thomas A. Holmes
* Chairman and Director June 22, 1994
Gordon R. Parker
President and Chief Operating Officer and
* Director June 22, 1994
T. Peter Philip
* Director June 22, 1994
Robin A. Plumbridge
* Director June 22, 1994
Robert H. Quenon
* Director June 22, 1994
James V. Taranik
* Director June 22, 1994
William I.M. Turner, Jr.
* Senior Vice President and Chief Financial
<PAGE>
Wayne W. Murdy Officer (Principal Financial Officer) June 22, 1994
* Vice President and Controller (Principal
Gary E. Farmar Accounting Officer) June 22, 1994
*By /s/ Timothy J. Schmitt
Name: T.J. Schmitt as
Attorney-in-fact
</TABLE>
EXHIBIT INDEX
<TABLE>
Exhibit
Number Page
<S> <C> <C>
1.1 - Proposed form of Underwriting Agreement relating to the Debt Securities.
1.2 - Proposed form of Distribution Agreement relating to the Debt Securities.
4.1 - Indenture dated as of , 1994 between the Company and The Bank
of New York (including forms of Debt Securities).
4.2 - Form of Floating Rate Medium Term Note.
4.3 - Form of Fixed Rate Medium Term Note.
5 - Opinion of White & Case.
12 - Computation of Ratio of Earnings to Fixed Charges.
23.1 - Consent of Arthur Andersen & Co.
23.2 - Consent of White & Case (included in Exhibit 5).
24 - Power of Attorney of certain officers and directors.
25 - Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended,
of The Bank of New York, Indenture Trustee.
</TABLE>
NEWMONT GOLD COMPANY
Debt Securities
Underwriting Agreement
, 19
Dear Sirs:
<PAGE>
1. Introductory. Newmont Gold Company, 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"). The
Registered Securities will be issued under an indenture, dated as of
, 1994 (the "Indenture"), between the Company and The Bank of
New York, as Trustee, in one or more series, which series may vary as
to interest rates, maturities, redemption provisions, selling prices
and other terms, with all such terms for any particular series of the
Registered Securities being determined at the time of sale. 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 involved in any such
offering are hereinafter 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. The
Company represents and warrants to, and agrees with, each Underwriter
that:
(a) A registration statement (No. 33- ), including a
prospectus, relating to the Registered 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 Registered 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 each 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.
<PAGE>
(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 Registered
Securities) will comply when so filed in all material respects
with the Exchange Act and the rules and regulations thereunder.
(d) The Company has complied and, until the distribution of
the Registered Securities is completed, will comply with all of
the provsions of Florida H.B. 1771, codified as Section 517.075 of
the Florida statutes, and all regulations promulgated thereunder
relating to issuers doing business with Cuba.
3. Purchase and Offering of Securities. The obligation of
the Company to issue and sell any 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 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 Securities, the principal amount of Securities
to be purchased by each Underwriter, the initial public offering price
of the Securities, the purchase price to be paid by the Underwriters
and the terms of the Securities not already specified in the Indenture,
including, but not limited to, dates of payment 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 and the Company 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 authorizes 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 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 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
<PAGE>
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 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. The Company agrees
with the several Underwriters that it will furnish to Davis Polk &
Wardwell, counsel for the Underwriters, one signed copy of the
registration statement relating to the Registered 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 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
Registered Securities is required to be delivered under the Act,
(i) the Company will advise the Representatives promptly of any
proposal to amend or supplement the Registration 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
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) To 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 earning 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).
<PAGE>
(e) The Company will furnish to the Representatives copies
of the Registration Statement, including all exhibits, any related
preliminary 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 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 the Company 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 will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Company's counsel
and accountants in connection with the registration of the
Registered Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the
Registration Statement, any preliminary prospectus 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 con-
nection 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 by the Representatives, and (ii) the Closing Date, without
the prior consent of the Representatives, the Company will not
offer, sell, contract to sell or otherwise dispose of any
securities substantially similar to the Securities.
<PAGE>
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 herein, to the accuracy of the
written statements of Company officers made pursuant to the provisions
hereof, to the performance by the Company 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;
(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
<PAGE>
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 corres-
ponding 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;
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 or any Underwriter, shall be contemplated
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
<PAGE>
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, counsel for the Company,
to the effect that:
(i) The Company 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 the Company 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, authenticated, 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 enforceable in accordance
with their terms, except as the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization
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); 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 the Company or any of its material
properties is required to be obtained or made by the Company
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, 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 the Company or any statute, rule,
<PAGE>
regulation or order applicable to the Company or any of its
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 or any of its material
properties (other than those that may be required under the
Act and under applicable state securities or Blue Sky laws as
to which such counsel need express no opinion) and the
Company 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
Registered 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 the Company.
(e) The Representatives shall have received an opinion,
dated the Closing Date, from Graham M. Clark, Jr., Esq., Senior
Vice President and General Counsel of the Company, to the effect
that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing in its state of
incorporation 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 its business requires such qualification (except
where the failure to so qualify would not have a material
adverse effect upon the Company and its 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 or any of its subsidiaries of which
such counsel is aware of any court or governmental agency or
body having jurisdiction over the Company or any of its
<PAGE>
material properties or, any material agreement or instrument
to which the Company or any material subsidiary is a party or
by which the Company or any such subsidiary is bound or to
which any of the properties of the Company or any such sub-
sidiary is subject, or the Restated Certificate of
Incorporation or By-Laws of the Company 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 or any of its material properties that is required to
be obtained or made by the Company 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,
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 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 Davis Polk
& Wardwell, counsel for the Underwriters, such opinion or
<PAGE>
opinions, dated the Closing Date, with respect to the
incorporation of the Company, the validity of the Securities, the
Registration Statement, the Prospectus and other related matters
as they may require, and the Company 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,
the Vice Chairman of the Board of Directors, the President, any
Senior Vice President or any Vice President and a principal
financial or accounting officer of the Company in which such
officers, to their knowledge, shall state that the representations
and warranties of the Company in this Agreement are true and
correct at and as of the Closing Date, that the Company 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.
The Company will furnish the Representatives with such conformed copies
of such opinions, certificates, letters and documents as they
reasonably request.
6. Indemnification and Contribution. (a) The Company
will 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 the Company will not 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
information furnished to the Company by any Underwriter specifically
for use therein; and provided, further, that the Company shall not be
liable to any Underwriter under the indemnity agreement in this subsec-
tion (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 the Company has
previously furnished copies thereof to such Underwriter and the loss,
claim, damage or liability results from an untrue statement or omission
<PAGE>
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 against any losses, claims, damages or liabilities to which the
Company 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 by such
Underwriter specifically for use therein, and will reimburse any legal
or other expenses reasonably incurred by the Company 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.
(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 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
<PAGE>
information supplied by the Company 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 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 propor-
tion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall
be in addition to any liability which the Company 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, to each officer of the Company who has
signed the Registration Statement and to each person, if any, who
controls the Company 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 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
the Company 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
<PAGE>
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 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 Securities which remains
unpurchased does not exceed one-tenth of the aggregate principal amount
of the Securities, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the principal amount of
Securities which such Underwriter agreed to purchase under the Terms
Agreement relating to such Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Securities which such Underwriter agreed to
purchase under such Terms Agreement) of the 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 Securities of a defaulting Underwriter or Underwriters
by the Representatives and the Company as provided in subsection (a)
above, the aggregate principal amount of Securities which remains
unpurchased exceeds one-tenth of the aggregate principal amount of the
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 Securities of a
defaulting Underwriter or Underwriters, then the Terms Agreement
relating to such Securities shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company,
except for the expenses to be borne by the Company 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 or its 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 or any of their respective representatives,
officers or directors or any controlling person and will survive
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 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 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 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 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
<PAGE>
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 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 set forth in the
Registration Statement, Attention: Secretary.
10. Successors. This Agreement will inure to the benefit of
and be binding upon the Company 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 have any right or obligation hereunder.
11. 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.
12. GOVERNING LAW. THIS AGREEMENT AND EACH TERMS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
13. 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.
If the foregoing is in accordance with your understanding,
please sign and return three counterparts hereof.
Very truly yours,
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
ANNEX I
NEWMONT GOLD COMPANY
Debt Securities
<PAGE>
Terms Agreement
, 19
[Names and Addresses of
Representatives]
Dear Sirs:
Newmont Gold Company, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated , 19 (the "Underwriting
Agreement"), between the Company 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 "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 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.
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 and the
Company. 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 upon request.
Very truly yours,
NEWMONT GOLD COMPANY
<PAGE>
By
Name:
Title:
Accepted as of the date hereof:
By:
On behalf of each of the Underwriters
SCHEDULE I
<TABLE>
Principal Amount of
Designated Securities
Underwriter to be Purchased
<S> <C>
Total......................... $
</TABLE>
SCHEDULE II
Title of Securities:
[ %] [Floating Rate] [Zero Coupon] [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:
<PAGE>
Indenture, dated as of , 1994, [, 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 ,
<TABLE>
Year Redemption
Price
<S> <C>
</TABLE>
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 --
<PAGE>
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) 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], 19
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]*
* 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.
<PAGE>
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
, 19 *.)
DELAYED DELIVERY CONTRACT
[Insert date of initial
public offering]
NEWMONT GOLD COMPANY
c/o [Name and Address of Representative]
Gentlemen:
The undersigned hereby agrees to purchase from Newmont Gold
Company, 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 , 19 ("Delivery Date"),]
$
principal amount of the Company's [Insert title of securities]
("Securities"), offered by the Company's Prospectus dated
, 19 and a Prospectus Supplement dated ,
19 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.
[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:
<TABLE>
Delivery Date Principal Amount
<S> <C>
</TABLE>
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
<PAGE>
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 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, it is requested that the Company 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 binding contract between the Company and the undersigned when
such counterpart is so mailed or delivered.
Yours very truly,
(Name of Purchaser)
By
(Title of Signatory)
<PAGE>
(Address of Purchaser)
Accepted, as of the above date.
NEWMONT GOLD COMPANY
BY
[Insert Title]
NEWMONT GOLD COMPANY
Up to $[ ]
Medium-Term Notes, Series A
Due From [ ] to [ ] from Date of Issue
Distribution Agreement
As of , 1994
[The Agents]
Dear Sirs:
Newmont Gold Company, a Delaware corporation (the "Company"),
confirms its agreement with each of you (individually, an "Agent", and
collectively, the "Agents") with respect to the issue and sale by the
Company of up to $[ ] aggregate principal amount of its
Medium-Term Notes, Series A, due from [ ] to [ ] from
the date of issue (the "Notes"). The Notes will be issued under an
Indenture dated as of , 1994 (the "Indenture"), between the
Company and The Bank of New York, as Trustee (the "Trustee"). The
Company has authorized the issuance of Notes to and through the Agents
pursuant to the terms of this Agreement. The Notes will be issued in
registered form. Each Note will be represented by either a single
global security in registered form without coupons delivered to the
Trustee as agent for The Depository Trust Company ("DTC") and recorded
in the book-entry system maintained by DTC or, if otherwise provided in
an applicable supplement to the Prospectus (as defined below), by a
certificate delivered to the holder thereof or a person designated by
such holder.
Subject to the terms and conditions stated herein and subject
to the reservation of the right of the Company to sell Notes directly
to investors on its own behalf and further subject to the understanding
that nothing in this Agreement shall impair or restrict (a) the
Company's right to sell securities with terms similar or identical to
any Note independently of the continuous offering of Notes contemplated
by this Agreement, or (b) the Company's ability to enter into
additional Distribution Agreements (without any Agent's consent) for
the purpose of appointing additional agents to solicit offers to
purchase Notes (which Distribution Agreements shall otherwise contain
terms and provisions substantially identical to this Agreement), the
Company hereby appoints the Agents as its agents for the purpose of
soliciting offers to purchase Notes from the Company by others. In
addition, an Agent may also purchase Notes as principal for resale to
<PAGE>
others and, if the Company determines to sell Notes directly to an
Agent and if requested by such Agent, the Company will enter into a
Terms Agreement relating to such sale (a "Terms Agreement") in
accordance with the provisions of Section 2(b).
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
33- ), including a prospectus, relating to the Notes. Such
registration statement, including the exhibits thereto, as amended at
the date of this Agreement, is hereinafter referred to as the
"Registration Statement". The Company proposes to file with the
Commission from time to time, pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Securities Act"), supplements
to the prospectus included in the Registration Statement that will
describe certain terms of the Notes. The prospectus in the form in
which it appears in the Registration Statement is hereinafter referred
to as the "Basic Prospectus". The term "Prospectus" means the Basic
Prospectus together with the prospectus supplement or supplements (each
a "Prospectus Supplement") specifically relating to Notes, as filed
with, or transmitted for filing to, the Commission pursuant to Rule
424(b). As used herein, the terms "Registration Statement", "Basic
Prospectus", "Prospectus" and "Prospectus Supplement" shall include in
each case the documents, if any, incorporated by reference therein.
The terms "supplement" and "amendment" or "amend" as used herein shall
include all documents filed by the Company pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), subsequent to
the date of the Basic Prospectus that are deemed to be incorporated by
reference in the Prospectus. Notwithstanding anything to the contrary
above in this paragraph, the Company shall have the right at any time
and from time to time to substitute for the Registration Statement one
or more other registration statements (each a "Substitute Registration
Statement") relating to the Notes and the offering and sale thereof
from time to time in accordance with Rule 415 under the Securities Act,
by written notification of such substitution to each of the Agents and
the Trustee. From and after the date of such notification, such
Substitute Registration Statements shall become the Registration
Statement as defined in this paragraph and as used for all purposes
throughout this Agreement.
1. Representations and Warranties. The Company represents
and warrants to each Agent as of the Commencement Date (as hereinafter
defined), as of each date on which the Company accepts an offer to
purchase Notes, as of each date the Company issues and sells Notes and
as of each date the Registration Statement or the Basic Prospectus is
amended or supplemented (each of the times referenced above being
referred to herein as a "Representation Date"), as follows (it being
understood that such representations and warranties shall be deemed to
relate to the Registration Statement, the Basic Prospectus and the
Prospectus, each as amended and supplemented to each such date):
(a) The Registration Statement (No. 33- ), including a
Prospectus, relating to the Notes has been filed with the Commission
and has become effective.
(b) On the effective date of the registration statement
relating to the Notes, such registration statement conformed in all
material respects to the requirements of the Securities Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission (the "Rules and Regulations")
under the Securities Act 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 each Representation Date, the Prospectus will conform in all
<PAGE>
material respects to the requirements of the Securities Act, the Trust
Indenture Act and the Rules and Regulations, and the Prospectus will
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, 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 Agent
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 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 Notes) will comply when so filed in all
material respects with the Exchange Act and the rules and regulations
thereunder.
2. Solicitations as Agent; Purchases as Principal.
(a) On the basis of the representations and warranties
herein contained, but subject to terms and conditions herein set forth,
each Agent agrees, severally and not jointly, to use its best efforts
to solicit offers to purchase Notes upon terms acceptable to the
Company at such times and in such amounts as the Company shall from
time to time specify.
The Company reserves the right, in its sole discretion, to
instruct any or all of the Agents to suspend at any time, for any
period of time or permanently, the solicitation of offers to purchase
Notes. Upon receipt of notice from the Company, each Agent will
forthwith suspend solicitations of offers to purchase Notes from the
Company until such time as the Company has advised the Agents that such
solicitation may be resumed. During the period of time that such
solicitation is suspended, the Company shall not be required to deliver
any certificates, opinions or letters in accordance with Sections 5(b),
5(c) and 5(d); provided, however, that if any of the events described
in Section 5(b), 5(c) or 5(d) shall have occurred during the period of
suspension, no Agent shall be required to resume soliciting offers to
purchase Notes until the Company has delivered such certificates,
opinions and letters as such Agent may reasonably request.
The Company agrees to pay to each Agent, as consideration for
the sale of each Note and receipt of payment therefor resulting from a
solicitation made by such Agent, a commission in the form of a discount
from the purchase price of such Note equal to the following percentage
of the purchase price of such Note:
<TABLE>
Term Commission Rate
<S> <C>
</TABLE>
It is understood that no commission will be payable with
respect to any offer to purchase Notes accepted by the Company unless
and until the sale of such Notes is consummated.
<PAGE>
Each Agent is authorized to solicit offers to purchase Notes
only in the principal amount of $1,000,000 or any amount in excess
thereof which is an integral multiple of $10,000. Each Agent shall
communicate to the Company, orally or in writing, each offer to
purchase Notes received by it as agent that in such Agent's reasonable
judgment should be considered by the Company. The Company shall have
the sole right to accept offers to purchase Notes and may reject any
offer in whole or in part. Each Agent shall have the right to reject
any offer to purchase Notes that such Agent reasonably considers to be
unacceptable, and any such rejection shall not be deemed a breach of
such Agent's agreements contained herein. "Reasonable" with respect to
an offer shall be determined by such Agent by reference to then-
prevailing interest rates and the interest rates then specified by the
Company with respect to offers to sell particular Notes.
(b) If requested by an Agent in connection with a sale of
Notes directly to such Agent as principal for resale to others, the
Company will enter into a separate Terms Agreement reasonably
satisfactory to the Company and such Agent that will provide for the
sale of such Notes to and the purchase and reoffering thereof by such
Agent in accordance with the terms of this Agreement and the Terms
Agreement. Each Terms Agreement shall be substantially in the form of
Exhibit A hereto but may take the form of an exchange of any standard
form of written telecommunication between such Agent and the Company or
may be an oral agreement confirmed in writing (including by a facsimile
transmission). An Agent's commitment to purchase Notes as principal
shall be deemed to have been made on the basis of the representations
and warranties of the Company herein contained and shall be subject to
the terms and conditions herein set forth. Each agreement by an Agent
to purchase Notes as principal (whether or not set forth in a Terms
Agreement) shall specify the principal amount of Notes to be purchased
by such Agent pursuant thereto, the maturity date thereof, the price to
be paid to the Company for such Notes and the time and place of
delivery of and payment for such Notes (each such date, a "Settlement
Date").
(c) Each Agent and the Company agree to perform the
respective duties and obligations specifically provided to be performed
in the Medium-Term Notes, Series A Administrative Procedures (attached
hereto as Exhibit B) (the "Procedures"), as amended from time to time.
The Procedures may be amended only by written agreement of the Company
and each Agent and, in the case of amendments which affect the rights,
duties or obligations of the Trustee, with the written agreement of the
Trustee. To the extent the Procedures in effect from time to time
conflict with any provision of this Agreement, the provisions of this
Agreement shall govern. The Company will furnish a copy of the
Procedures from time to time in effect to the Trustee.
(d) The documents required to be delivered by Section 4 of
this Agreement shall be delivered at the office of White & Case,
counsel to the Company, not later than 2:00 P.M., New York City time,
on the date hereof, or at such other time and/or place as you and the
Company may agree upon in writing (the "Commencement Date").
(e) No Agent is authorized to give any information or make
any representation in connection with the solicitation of purchases of
Notes as agents or the offer or sale of the Notes as principals other
than those contained in the Prospectus and the documents incorporated
therein by reference, and each Agent will indemnify the Company against
any losses, liabilities, damages or claims, or actions in respect
hereof, which the Company may incur or which may be made against the
Company arising out of or in connection with the making by such Agent
of any unauthorized representation or the giving by such Agent of any
<PAGE>
information, in connection with the solicitation of purchases of the
Notes as agents or the offer or sale of Notes as principals, which is
not contained in the Prospectus.
(f) Each Agent represents that it is a broker-dealer
registered under the Exchange Act.
3. Agreements. The Company agrees with each Agent that:
(a) The Company will promptly notify such Agent of (i) the
filing of any amendment or supplement to the Basic Prospectus, other
than filings relating solely to securities other than the Notes or
solely establishing the terms of particular Notes to be sold pursuant
hereto, (ii) the filing and effectiveness of any amendment to the
Registration Statement, other than filings relating solely to
securities other than the Notes, (iii) any request by the Commission
for any amendment of the Registration Statement or any amendment of or
supplement to the Basic Prospectus or for any additional information,
other than any request relating solely to securities other than the
Notes, (iv) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company will use reasonable efforts to prevent the issuance of any such
stop order or notice of suspension of qualification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes
is required to be delivered under the Securities Act, any event occurs
or condition exists as a result of which, in the opinion of counsel to
the Agents, the Registration Statement or 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 when the
Prospectus, as then amended or supplemented, is delivered, to a
purchaser, not misleading, or if, in such Agent's reasonable opinion or
in the opinion of counsel to the Company, it is necessary at any time
to amend or supplement the Registration Statement or the Prospectus, as
then amended or supplemented, to comply with law, the Company will
promptly notify the Agents by telephone (with confirmation in writing)
to suspend solicitation of offers to purchase Notes and, if so notified
by the Company, such Agent shall forthwith suspend such solicitation
and cease using the Prospectus as then amended or supplemented and
cease sales of any Notes such Agent may own as principal. If the
Company shall decide to amend or supplement the Registration Statement
or Prospectus as then amended or supplemented, it shall so advise such
Agent promptly by telephone (with confirmation in writing) and, at its
expense, shall prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or
Prospectus as then amended or supplemented that will correct such
statement or omission or effect such compliance and will supply such
amended or supplemented Prospectus to such Agent in such quantities as
such Agent may reasonably request. If such amendment or supplement and
any documents, certificates, opinions and letters furnished to such
Agent pursuant to Sections 5(b), 5(c) and 5(d) in connection with the
preparation and filing of such amendment or supplement are satisfactory
in all respects to such Agent, upon the filing of such amendment or
supplement with the Commission or effectiveness of an amendment to the
Registration Statement, such Agent will resume the solicitation of
offers to purchase Notes hereunder. Notwithstanding any other
provision of this Section 3(b), until the distribution of any Notes any
<PAGE>
Agent may own as principal has been completed, if any event described
above in this paragraph (b) occurs, the Company will, at its own
expense, forthwith prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or
Prospectus as then amended or supplemented, reasonably satisfactory to
such Agent, and will supply such amended or supplemented Prospectus to
such Agent in such quantities as such Agent may reasonably request. If
such amendment or supplement and any documents, certificates, opinions
and letters furnished to such Agent pursuant to Sections 5(b), 5(c) and
5(d) in connection with the preparation and filing of such amendment or
supplement are reasonably satisfactory to such Agent, upon the filing
of such amendment or supplement with the Commission or effectiveness of
an amendment to the Registration Statement, such Agent may resume its
resale of Notes as principal.
(c) The Company will make generally available to its
security holders and to such Agent as soon as practicable earnings
statements that satisfy the provisions of Section 11(a) of the
Securities Act and the Rules and Regulations (including, at the option
of the Company, Rule 158) covering twelve month periods beginning after
the "effective date" (as defined in Rule 158 under the Securities Act)
of the Registration Statement with respect to each sale of Notes. It
is understood by the parties hereto that the foregoing sentence does
not require any filing or other action by the Company other than its
periodic filings on Form 10-K and Form 10-Q.
(d) The Company will furnish to such Agent, promptly after
the filing thereof with the Commission, copies of its annual report on
Form 10-K (including the audited financial statements of the Company
for the preceding fiscal year), its quarterly reports on Form 10-Q with
respect to each of the first three quarters of any fiscal year and its
reports on Form 8-K (other than reports relating solely to securities
other than the Notes); provided, however, that if on the date of such
filing any Agent shall have suspended solicitation of purchases of the
Notes in its capacity as agent pursuant to a request from the Company,
and if such Agent shall not hold any Notes as principal purchased
pursuant to a Terms Agreement, the Company shall not be obligated to
furnish copies of such reports to such Agent until such time as the
Company shall determine that solicitation of purchases of the Notes
should be resumed by such Agent or shall subsequently enter into a new
Terms Agreement with such Agent.
(e) The Company will use its reasonable efforts to qualify
the Notes for offer and sale under the securities or blue sky laws of
such jurisdictions as such Agent shall reasonably request and will
maintain such qualifications for as long as may be required for the
distribution of the Notes; provided, however, that the Company shall
not be obligated to file any consent to service of process or to
qualify as a foreign corporation in any jurisdiction in which it is not
so qualified.
(f) The Company, during the period when the Prospectus is
required to be delivered or made available, will use reasonable efforts
to file in a timely manner all documents required to be filed with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act.
(g) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its
obligations under this Agreement and any Terms Agreement, including:
(i) the preparation and filing of the Registration Statement and the
Prospectus and all amendments and supplements thereto, (ii) the
preparation, issuance and delivery of the Notes, (iii) the reasonable
<PAGE>
fees and disbursements of the Company's counsel and accountants and of
the Trustee and its counsel, (iv) the qualification of the Notes under
securities or blue sky laws in accordance with the provisions of
Section 3(e), including filing fees and the reasonable fees and
disbursements of counsel for the Agents in connection therewith and in
connection with the preparation of any Blue Sky Memoranda, (v) the
printing and delivery to such Agent in quantities as hereinabove stated
of copies of the Registration Statement and all amendments thereto, and
of the Basic Prospectus and any amendments or supplements thereto, (vi)
the reproduction and delivery to such Agent of copies of the Indenture
and any Blue Sky Memoranda, (vii) any fees charged by rating agencies
for the rating of the Notes, (viii) the fees and expenses, if any,
incurred with respect to any filing with the National Association of
Securities Dealers, Inc., (ix) the reasonable fees and disbursements of
counsel for the Agents incurred in connection with the offering and
sale of the Notes and (x) any out-of-pocket expenses incurred by such
Agent, with the written approval of the Company.
Notwithstanding the foregoing, any advertising relating to
the offer or sale of any Notes or this Agreement undertaken by any
Agent will be for the account of such Agent and will not be paid for or
reimbursed by the Company. Each of the Agents hereby agrees that no
such advertising will be undertaken by it without the prior oral or
written approval thereof by the Company.
4. Conditions of the Obligations of the Agents. The
obligations of each Agent to solicit offers to purchase Notes as agent
of the Company, the obligations of each Agent to purchase Notes
pursuant to any Terms Agreement or otherwise and the obligations of any
other purchaser to purchase Notes will be subject to the absence of any
downgrading in the rating of any senior debt securities of the Company
by any "nationally recognized statistical rating organization", as such
term is defined for purposes of Rule 436(g)(2) under the Securities
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 implication of a possible
upgrading, and no implication of a possible downgrading, of such
rating), the accuracy of the representations and warranties on the part
of the Company herein, to the accuracy of the statements of the
Company's officers made in each certificate furnished pursuant to the
provisions hereof prior to or concurrently with any such solicitation
or purchase, to the performance and observance by the Company of all
covenants and agreements herein contained on its part to be performed
and observed, in each case, at the time of such solicitation or
purchase and to the following additional conditions precedent:
(a) On the Commencement Date and, if called for by any
agreement by such Agent to purchase Notes as principal, on the
corresponding Settlement Date, such Agent shall have received:
(i) The opinion, dated as of such date, of White & Case,
counsel for the Company, to the effect that:
(A) The Company 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;
(B) The Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the
Trust Indenture Act; the Notes have been duly authorized; the
Indenture constitutes and the Notes, when executed, authenticated,
<PAGE>
issued and delivered in the manner provided in the Indenture and
sold to any purchaser through any Agent as agent or to any Agent
as principal pursuant to any Terms Agreement, will constitute,
valid and legally binding obligations of the Company enforceable
in accordance with their terms, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization 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); and the Notes, when issued
and delivered in the manner provided for in the Indenture and sold
to a purchaser through any Agent as agent or to any Agent as
principal pursuant to any Terms Agreement, will conform, in all
material respects to the description thereof contained in the
Prospectus;
(C) 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 the Company or any of its material properties is required to
be obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement, and, if the opinion
is being delivered as a result of the Company's having entered
into a Terms Agreement requiring such opinion, the applicable
Terms Agreement, in connection with the issuance or sale of the
Notes by the Company, except such as have been obtained and made
under the Securities 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);
(D) The execution, delivery and performance of the Indenture,
this Agreement and the issuance and sale of the Notes 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 the Company or any statute, rule,
regulation or order applicable to the Company or any of its
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 or any of its material properties
(other than those that may be required under the Securities Act
and under applicable state securities or Blue Sky laws as to which
such counsel need express no opinion) and the Company has full
corporate power and authority to authorize, issue and sell the
Notes as contemplated by this Agreement (and, if the opinion is
being delivered as a result of the Company's having entered into a
Terms Agreement requiring such opinion, the applicable Terms
Agreement);
(E) Each of the registration statement, as of its effective
date, the Registration Statement and the Prospectus, and any
amendment or supplement thereto, as of its date, appeared on its
face to comply as to form in all material respects with the
requirements of the Securities 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 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 not
misleading; it being understood that such counsel need express no
opinion as to the financial statements and schedules or other
<PAGE>
financial or statistical data contained in any of the above-
mentioned documents; and
(F) This Agreement and, if the opinion is being delivered as
a result of the Company's having entered into a Terms Agreement
requiring such opinion, the applicable Terms Agreement, has been
duly authorized, executed and delivered by the Company.
(ii) Graham M. Clark, Jr., Esq., Senior Vice President and
General Counsel for the Company, shall have furnished to the Agents his
written opinion, dated as of such date to the effect that:
(A) The Company has been duly incorporated and is an existing
corporation in good standing in its state of incorporation 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 business requires such qualification
(except where the failure to so qualify would not have a material
adverse effect upon the Company and its subsidiaries taken as a
whole), and has all power and authority necessary to own its
properties and conduct the business in which it is engaged as
described in the Prospectus;
(B) The execution, delivery and performance of the
Indenture, this Agreement and, if the opinion is being delivered
as a result of the Company's having entered into a Terms Agreement
requiring such opinion, the applicable Terms Agreement and the
issuance and sale of the Notes and compliance with the terms and
provisions hereof and, if applicable, 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 or any of its subsidiaries of which such
counsel is aware of any court or governmental agency or body
having jurisdiction over the Company or any of its material
properties, or any material agreement or instrument to which the
Company or any material subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or
the Restated Certificate of Incorporation or By-Laws of the
Company or any such subsidiary;
(C) 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 or any
of its material properties that is required to be obtained or made
by the Company for the consummation of the transactions
contemplated by this Agreement and, if the opinion is being
delivered as a result of the Company's having entered into a Terms
Agreement requiring such opinion, the applicable Terms Agreement
in connection with the issuance or sale of the Notes by the
Company, except such as may be required under the Securities Act,
the Trust Indenture Act and under state securities or Blue Sky
laws (as to which such counsel need express no opinion);
(D) 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 need 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, as
amended 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
<PAGE>
documents were so filed contained an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the cir-
cumstances under which they were made when such documents were so
filed, not misleading;
(E) 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,
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 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 that such
counsel need express no opinion as to supplements and amendments
to the registration statement, as of its effective date, relating
solely to securities other than the Notes; and
(F) 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 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.
(iii) The Agents shall have received from Davis Polk &
Wardwell, counsel for the Agents, such opinion or opinions with respect
to the incorporation of the Company, the validity of the Notes, the
Registration Statement, the Prospectus and other related matters as
they may require, and the Company shall have furnished to such counsel
such documents as they reasonably request for the purpose of enabling
them to pass upon such matters.
(b) The Representatives shall have received a certificate,
dated the Commencement Date, and, if called for by any agreement by
such Agent to purchase Notes as principal, on the corresponding
Settlement Date, of the chairman, the vice chairman, the president, any
senior vice president or any vice president and a principal financial
or accounting officer of the Company in which such officers, on behalf
of the Company and to their knowledge, shall state that the
representations and warranties of the Company in this Agreement are
true and correct at and as of such date, that the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to such 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
operations 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.
(c) On the Commencement Date and, if called for by any
agreement by such Agent to purchase Notes as principal, on the
corresponding Settlement Date, Arthur Andersen & Co. shall have
furnished to such Agent a letter or letters from Arthur Andersen & Co.
or another nationally recognized firm of independent public accountants
reasonably satisfactory to the Agents, dated as of the Commencement
<PAGE>
Date or such Settlement Date, as the case may be, in form and substance
satisfactory to such Agent containing statements and information of the
type ordinarily included in accountant's "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into
the Registration Statement and the Prospectus, as amended or
supplemented.
(d) If any condition specified in this Section shall not
have been fulfilled as of the relevant date required, this Agreement
and any Terms Agreement may be terminated as to any Agent by notice by
such Agent to the Company at any time with respect to this Agreement
and at or prior to the applicable Settlement Date with respect to Notes
purchased by an Agent pursuant to a Terms Agreement, and any such
termination shall be without liability of any party to any other party,
except that the covenant set forth in Section 3(c) (except that the
Company shall no longer be required to comply with the provisions of
Section 3(c) after it has made generally available to its security
holders an earnings statement (which need not be audited) covering a
twelve-month period beginning after the date of the last sale of Notes
hereunder which satisfies the provisions of Rule 158 of the Rules and
Regulations), the provisions of Section 3(g), the indemnity and
contribution agreements set forth in Section 6, and the provisions of
Sections 2(e), 8 and 12 shall remain in effect.
5. Additional Agreements of the Company. The Company
covenants and agrees that:
(a) Each acceptance by it of an offer for the purchase of
Notes, and each sale of Notes to any Agent pursuant to a Terms
Agreement, shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this
Agreement and in the most recent certificate theretofore delivered to
the Agents pursuant to Section 4(b) or 5(b), as the case may be, are
true and correct at the time of such acceptance or sale, as the case
may be, and an undertaking that such representations and warranties
will be true and correct at the time of delivery to the purchaser or
his agent, or to the Agents, of the Note or Notes relating to such
acceptance or sale, as the case may be, as though made at and as of
each such time (and it is understood that such representations and
warranties shall relate to the Registration Statement and the
Prospectus as amended and supplemented to each such time).
(b) Each time the Registration Statement or Prospectus is
amended or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rates, redemption
provisions, offering price, principal amount, amortization schedules or
maturities offered on the Notes or for a change deemed immaterial in
the reasonable opinion of each Agent or other than by an amendment or
supplement (including as a result of the filing of a document
incorporated by reference) relating solely to securities other than the
Notes or solely establishing the terms of particular Notes to be sold
pursuant hereto), the Company will, if requested by an Agent in writing
(provided that such request is made within 30 days of being notified of
such amendment or supplement pursuant to Section 3(a)), deliver or
cause to be delivered forthwith to each Agent a certificate signed by
an executive officer of the Company, dated the date of such amendment
or supplement, as the case may be, in form reasonably satisfactory to
such Agent, of the same tenor as the certificate referred to in Section
4(b) modified as necessary to relate to the Registration Statement or
the Prospectus as amended and supplemented to the time of delivery of
such certificate; provided, however, that the Company shall not be
required to furnish any certificates to any Agent pursuant to this
<PAGE>
paragraph at a time when such Agent shall have suspended solicitation
of purchases of Notes in its capacity as agent pursuant to instructions
of the Company, if such Agent shall then not hold any Notes as
principal purchased under a Terms Agreement.
(c) Each time the Company furnishes a certificate pursuant to
Section 5(b), the Company shall furnish or cause to be furnished
forthwith to each Agent written opinions of counsel for the Company.
Any such opinion shall be dated the date of such amendment or
supplement, as the case may be, shall be in a form satisfactory to such
Agent and shall be of the same tenor as the opinions referred to in
Section 4(a), but modified to relate to the Registration Statement or
the Prospectus as amended and supplemented to the time of delivery of
such opinions. In lieu of such opinions, counsel last furnishing such
opinions to such Agent may furnish to such Agent letters to the effect
that such Agent may rely on such last opinions to the same extent as
though they were dated the date of such letters (except that statements
in such last opinions will be deemed to relate to the Registration
Statement or the Prospectus as amended and supplemented to the time of
delivery of such letters); provided, however, that no such opinions
need be furnished to any Agent pursuant to this paragraph at a time
when such Agent shall have suspended solicitation of purchases of Notes
in its capacity as agent pursuant to instructions of the Company, if
such Agent shall then not hold any Notes as principal purchased under a
Terms Agreement.
(d) Each time the Registration Statement or the Prospectus
is amended or supplemented to set forth amended or supplemental
financial information or such amended or supplemental financial
information is incorporated by reference in the Registration Statement
or the Prospectus, the Company shall, if requested by any Agent, cause
Arthur Andersen & Co. or any other nationally recognized firm of
independent public accountants reasonably satisfactory to the Agents
forthwith to furnish each Agent with a letter, dated the date of such
amendment or supplement, as the case may be, in form satisfactory to
such Agent, of the same tenor as the letter referred to in Section
4(c), with regard to the amended or supplemental financial information
included or incorporated by reference in the Registration Statement or
the Prospectus as amended or supplemented to the date of such letter;
provided, however, that if the Registration Statement or the Prospectus
is amended or supplemented solely to include financial information as
of and for a fiscal quarter, Arthur Andersen & Co. or such other firm
may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement unless any other
information included therein of an accounting or financial nature is
such that, in the Agents' reasonable judgment, such letter should cover
such other information; provided further, however, that the Company
shall not be required to cause Arthur Andersen & Co. or another firm of
certified public accountants reasonably satisfactory to the Agents to
furnish a letter to any Agent pursuant to this paragraph at a time when
such Agent shall have suspended solicitation of purchases of Notes in
its capacity as agent pursuant to instructions of the Company, if such
Agent shall then not hold any Notes as principal purchased under a
Terms Agreement.
6. Indemnification and Contribution. (a) The Company
will indemnify and hold harmless each Agent against any losses, claims,
damages or liabilities, joint or several, to which such Agent may
become subject, under the Securities 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 arise out of
<PAGE>
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 Agent for
any legal or other expenses reasonably incurred by such Agent in
connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided,
however, that the Company will not 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 information furnished to the
Company by any Agent specifically for use therein; and provided,
further, that the Company will not be liable to any agent under the
indemnity agreement in this subsection (a) for losses, claims, damages
or liabilities (or actions in respect thereof) arising out of or in
connection with any matter in respect of which the Agents have agreed
to indemnify the Company pursuant to Section 2(e); and provided,
further, that the Company shall not be liable to any Agent under the
indemnity agreement in this subsection (a) with respect to any
prospectus to the extent that any such loss, claim, damage or liability
of such Agent results from a sale of Notes 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 Securities Act if the
Company has previously furnished copies thereof to such Agent and the
loss, claim, damage or liability results from an untrue statement or
omission of a material fact contained in the prospectus which was
corrected in the Prospectus (as then amended, supplemented or
modified).
(b) In addition to the indemnity provided in Section 2(e),
each Agent will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may become
subject, under the Securities 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 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 by such
Agent specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company 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
<PAGE>
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.
(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 on the one hand and of each Agent participating in the offering
of Notes that gave rise to such losses, claims, damages or liabilities
(a "Relevant Agent") on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabili-
ties, as well as any other equitable considerations, including relevant
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 or the Relevant
Agent and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement
or omission. The Company and the Agents 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 Agents 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
Relevant Agent shall be required to contribute any amount in excess of
the amount by which (x) the sum of (i) the total price at which the
Notes, the purchase of which is the subject of the claim for con-
tribution and which was solicited by such Relevant Agent, were sold by
the Company and (ii) the total price at which the Notes, the purchase
of which is the subject of the claim for contribution and which such
Relevant Agent purchased as principal and distributed to the public,
were offered to the public, exceeds (y) the amount of any damages which
such Relevant Agent has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Agents' obligations in this subsection (d) to
contribute are several in proportion to their respective agency
obligations and not joint.
(e) The obligations of the Company under this Section
shall be in addition to any liability which the Company may otherwise
have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Agent within the meaning of the
<PAGE>
Securities Act; and the obligations of the Agents under this Section
shall be in addition to any liability which the respective Agents may
otherwise have and shall extend, upon the same terms and conditions, to
each director of the Company, to each officer of the Company who has
signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Securities Act.
7. Termination. This Agreement may be terminated at any
time either (a) by the Company as to any Agent or all of the Agents or
(b) by any Agent, insofar as this Agreement relates to such Agent, upon
the giving of 30 days' written notice of such termination to the other
parties hereto. In the event of such termination with respect to any
Agent, this Agreement shall remain in full force and effect with
respect to any Agent as to which such termination has not occurred.
Any Terms Agreement shall be subject to termination in the absolute
discretion of any Agent which is a party thereto at any time prior to
the Settlement Date relating thereto if (i) trading in securities
generally on the New York Stock Exchange, Inc. shall have been
suspended or materially limited or there shall be any setting of
minimum prices for trading on such exchange; (ii) a general moratorium
on commercial banking activities in the State of New York or the United
States shall have been declared by Federal or New York authorities; or
(iii) there shall have occurred any material 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 such Agent or Agents the effect of any such outbreak,
escalation, declaration, calamity or emergency is so material and
adverse so as to make it impracticable or inadvisable to proceed with
the completion of the sale of and payment for the Notes. The
termination of this Agreement shall not require termination of any
agreement by any Agent to purchase Notes as principal, and the
termination of any such agreement shall not require termination of this
Agreement. If this Agreement is terminated, the provisions of the
third paragraph of Section 2(a), the last two sentences of Section
3(b), Section 3(c) (except that the Company shall no longer be required
to comply with the provisions of Section 3(c) after it has made
generally available to its security holders an earnings statement
(which need not be audited) covering a twelve-month period beginning
after the date of the last sale of Notes hereunder which shall satisfy
the provisions of Rule 158 of the Rules and Regulations), 3(g), 6, 8
and 12 shall survive; provided that if at the time of termination an
offer to purchase Notes has been accepted by the Company but the time
of delivery to the purchaser or its agent of such Notes has not
occurred, the provisions of Sections 2(c) and 3(a) shall also survive.
If any Terms Agreement is terminated, the provisions of Sections 3(c)
(except that the Company shall no longer be required to comply with the
provisions of Section 3(c) after it has made generally available to its
security holders an earning statement (which need not be audited)
covering a twelve-month period beginning after the date of the last
sale of Notes hereunder which shall satisfy the provisions of Rule 158
of the Rules and Regulations), 3(g), 6, 8 and 12 and the last two
sentences of Section 3(b) (which shall have been incorporated by
reference in such Terms Agreement) shall survive.
8. Representations and Indemnities to Survive. The
respective indemnity and contribution agreements, representations,
warranties and other statements of the Company, its officers and each
Agent set forth in or made pursuant to this Agreement or any agreement
by such Agent to purchase Notes as principal will remain in full force
and effect, regardless of any termination of this Agreement, any
investigation made by or on behalf of such Agent or the Company or any
<PAGE>
of the officers, directors or controlling persons referred to in
Section 6 and delivery of and payment for the Notes.
9. Notices. All communications hereunder will be in
writing and shall be deemed to have been duly given if hand delivered,
sent by first-class mail (postage prepaid) or transmitted by facsimile
(confirmed in writing by hand delivery or first-class mail sent on the
date of such facsimile communication) as follows:
if to [Agent]
Attention:
Tel:
Fax:
if to [Agent]
Attention:
Tel:
Fax:
in each case, with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: Francis J. Morison, Esq.
Tel: (212)
Fax: (212)
and, if to the Company:
1700 Lincoln Street
Denver, Colorado 80203
Attention: Timothy J. Schmitt, Esq.
Tel: (303) 863-7414
Fax: (303) 837-5810
with a copy to:
White & Case
1155 Avenue of the Americas
New York, New York 10036
Attention: Maureen Brundage, Esq.
Tel: (212) 819-8314
Fax: (212) 354-8113
10. Successors. This Agreement and any Terms Agreement will
inure to the benefit of and be binding upon the parties hereto and
their respective successors and the officers, directors and controlling
persons referred to in Section 6 and their heirs and legal
representatives and the purchasers of Notes (to the extent expressly
provided herein), and no other person will have any right or obligation
hereunder. No purchaser of Notes, except as provided herein, shall be
deemed to be a successor by reason merely of such purchase.
11. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the
<PAGE>
same effect as if the signatures thereto and hereto were upon the same
instrument.
12. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
13. Headings. The headings of the sections of this
Agreement have been inserted for convenience of reference only and
shall not be deemed a part of this Agreement.
If the foregoing is in accordance with the understanding of
the Agents of our agreement, please sign and return to us the enclosed
duplicate hereof, whereupon this letter and the acceptance of the
Agents shall represent a binding agreement between the Company and such
Agent.
Very truly yours,
NEWMONT GOLD COMPANY
By:
Title:
The foregoing Agreement
is hereby confirmed
and accepted as of the
date first above written.
[AGENT]
By:
Title:
[AGENT]
By:
Title:
EXHIBIT A
NEWMONT GOLD COMPANY
Medium-Term Notes, Series, A
Terms Agreement
, 19
Newmont Gold Company
1700 Lincoln Street
<PAGE>
Denver, Colorado 80203
Attention:
Re: Distribution Agreement
Dated as of , 1994
The undersigned agrees to purchase your Medium-Term Notes, Series A
having the following terms:
<TABLE>
FIXED FLOATING
ALL NOTES: RATE NOTES: RATE NOTES:
<S> <C> <C>
Principal Interest Rate: Base Rate:
Amount:
Applicability of Annual Index Maturity:
Purchase Price: Interest Payments:
Spread:
Settlement Date and Time:
Spread
Place of Delivery: Multiplier:
Issue Date: Alternate Rate
Event Spread:
Initial Interest Rate:
Interest Reset Dates:
Maturity Date:
Interest Payment Period:
Interest Payment Date(s):
Optional Repayment Date(s):
Initial Redemption Date:
Initial Redemption
Percentage:
Applicability of Annual
Redemption Percentage
Reduction:
If yes, state Annual
Percentage Reduction:
</TABLE>
The provisions of Sections 1, 2(b), 2(c), 3, 4 and 6 through
13 of the Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same
force and effect as if set forth in full herein.
[The opinions referred to in Section 4(a) of the Distribution
Agreement, the certificate referred to in Section 4(b) of the
Distribution Agreement and the accountants' letter referred to in
Section 4(c) of the Distribution Agreement will be required.]
<PAGE>
[NAME OF PURCHASER]
By:
Title:
Accepted as of the date
written above:
NEWMONT GOLD COMPANY
By:
Title:
EXHIBIT B
NEWMONT GOLD COMPANY
MEDIUM-TERM NOTES, SERIES A, ADMINISTRATIVE PROCEDURES
Explained below are the administrative procedures and
specific terms of the offering of Medium-Term Notes, Series A on a
continuous basis by Newmont Gold Company (the "Company") pursuant to
the Distribution Agreement, dated as of , 1994 (the
"Distribution Agreement") between the Company and
, and
(the "Agents"). In the Distribution Agreement,
each Agent has agreed to use its best efforts to solicit purchases of
the Notes. An Agent, as principal, may purchase Notes for its own
account and if requested by such Agent, the Company and the Agent will
enter into a Terms Agreement, as contemplated by the Distribution
Agreement.
The Notes will be issued pursuant to the provisions of the
Indenture dated as of , 1994 (the "Indenture"), between
the Company and The Bank of New York, as Trustee (the "Trustee"). The
Trustee will be the Registrar, Calculation Agent (if applicable) and
Paying Agent for the Notes, and will perform the duties specified
herein. Notes will bear interest at a fixed rate (the "Fixed Rate
Notes") or at floating rates (the "Floating Rate Notes"). The
principal of and interest on the Notes will be payable in U.S. dollars
only. Each Note will be represented by either a Global Security (as
defined below) delivered to the Trustee as agent for The Depository
Trust Company ("DTC"), and recorded in the book-entry system maintained
by DTC (a "Book-Entry Note"), or a certificate delivered to the holder
thereof or a person designated by such holder (a "Certificated Note").
Except in limited circumstances, an owner of a Book-Entry Note will not
be entitled to receive a Certificated Note.
Book-Entry Notes will be issued in accordance with the
administrative procedures set forth in Part I hereof as they may
subsequently be amended as the result of changes in DTC's operating
procedures, and Certificated Notes will be issued in accordance with
the administrative procedures set forth in Part II hereof. Unless
otherwise defined herein or in the Distribution Agreement, terms
<PAGE>
defined in the Indenture or the Notes shall be used herein as therein
defined.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes
for eligibility in the book-entry system maintained by DTC, the Trustee
will perform the custodial, document control and administrative
functions described below, in accordance with its respective
obligations under a Letter of Representation from the Company and the
Trustee to DTC, dated as of the date hereof (the "Letter of Representa-
tion"), and a Medium-Term Note Certificate Agreement between the
Trustee and DTC, dated April 14, 1989, and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System
("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry
Notes, the Company will issue a single global
security in fully registered form without
coupons (a "Global Security") representing up
to $150,000,000 principal amount of all such
Notes that have the same purchase price,
settlement date, Maturity Date, redemption
provisions, Interest Payment Dates, Original
Issue Date, and, in the case of Fixed Rate
Notes, Interest Rate, or, in the case of
Floating Rate Notes, Initial Interest Rate,
Interest Payment Dates, Interest Payment
Period, Calculation Agent, Base Rate, Index
Maturity, Interest Reset Period, Interest
Reset Dates, Spread or Spread Multiplier (if
any), Alternative Rate Event Spread (if any),
Minimum Interest Rate (if any) and Maximum
Interest Rate (if any), and any other relevant
terms (collectively "Terms"). Each Global
Security will be dated and issued as of the
date of its authentication by the Trustee.
Book-Entry Notes may only be denominated and
payable in U.S. dollars. No Global Security
will represent any Certificated Note.
Identification The Company has arranged with the CUSIP
Numbers: Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau") for
the reservation of a series of approximately
[900] CUSIP numbers (including tranche
numbers) for assignment to Global Securities
representing the Book-Entry Notes. The
Company has obtained from the CUSIP Service
Bureau a written list of series of reserved
CUSIP numbers and has delivered to the Trustee
and DTC the written list of [900] CUSIP
numbers of such series. The Company will
assign CUSIP numbers to Global Securities as
described below under Settlement Procedure
"B". DTC will notify the CUSIP Service Bureau
periodically of the CUSIP numbers that the
Company has assigned to Global Securities. At
any time when fewer than 100 of the reserved
CUSIP numbers remain unassigned to Global
Securities, the Company, if it deems
necessary, will reserve additional CUSIP
<PAGE>
numbers for assignment to Global Securities
representing Book-Entry Notes. Upon obtaining
such additional CUSIP numbers, the Company
shall deliver a list of such additional CUSIP
numbers to the Trustee and DTC.
Registration: Each Global Security will be registered in the
name of Cede & Co., as nominee for DTC, on the
Security Register maintained under the
Indenture. The beneficial owner of a
Book-Entry Note (or one or more indirect
participants in DTC designated by such owner)
will designate one or more participants in DTC
(with respect to such Note, the
"Participants") to act as agent or agents for
such owner in connection with the book-entry
system maintained by DTC, and DTC will record
in book-entry form, in accordance with
instructions provided by such Participants, a
credit balance with respect to such beneficial
owner in such Note in the account of such
Participants. The ownership interest of such
beneficial owner in such Note will be recorded
through the records of such Participants or
through the separate records of such
Participants and one or more indirect
participants in DTC.
Transfers: Transfers of a Book-Entry Note will be
accompanied by book entries made by DTC and,
in turn, by Participants (and in certain
cases, one or more indirect participants in
DTC) acting on behalf of beneficial
transferors and transferees of such Note.
Exchange: The Trustee may deliver to DTC and the CUSIP
Service Bureau at any time a written notice of
consolidation specifying (i) the CUSIP numbers
of two or more Outstanding Global Securities
that represent Book-Entry Notes having the
same Terms and for which interest has been
paid to the same date, (ii) a date, occurring
at least thirty days after such written notice
is delivered and at least thirty days before
the next Interest Payment Date for such
Book-Entry Notes, on which such Global
Securities shall be exchanged for a single
replacement Global Security and (iii) a new
CUSIP number to be assigned to such
replacement Global Security. Upon receipt of
such a notice, DTC will send to its
Participants (including the Trustee) a written
reorganization notice to the effect that such
exchange will occur on such date. Prior to
the specified exchange date, the Trustee will
deliver to the CUSIP Service Bureau a written
notice setting forth such exchange date and
the new CUSIP number and stating that, as of
such exchange date, the CUSIP numbers of the
Global Securities to be exchanged will no
longer be valid. On the specified exchange
date, the Trustee will exchange such Global
Securities for a single Global Security
<PAGE>
bearing the new CUSIP number and the CUSIP
numbers of the exchanged Global Securities
will, in accordance with CUSIP Service Bureau
procedures, be cancelled and not immediately
reassigned. Notwithstanding the foregoing, if
the Global Securities to be exchanged exceed
$150,000,000 in aggregate principal amount,
one Global Security will be authenticated and
issued to represent each $150,000,000
principal amount of the exchanged Global
Security and an additional Global Security
will be authenticated and issued to represent
any remaining principal amount of such Global
Securities (see "Denominations" below). In
such a case, each of the Global Securities
representing such Book-Entry Note or Notes
shall be assigned the same CUSIP number.
Maturities: Each Book-Entry Note will mature on a date
from nine months to 30 years from its date of
issue.
Notice of The Trustee will give notice to DTC prior to
Redemption each Redemption Date (as specified in the
Dates: Note), if any, at the time and in the manner
set forth in the Letter of Representation.
Denominations: Unless the applicable Pricing Supplement
provides otherwise, Book-Entry Notes will be
issued in principal amounts of $100,000 or any
amount in excess thereof that is an integral
multiple of $1,000. Global Securities will be
denominated in principal amounts not in excess
of $150,000,000. If one or more Book-Entry
Notes having an aggregate principal amount in
excess of $150,000,000 would, but for the
preceding sentence, be represented by a single
Global Security, then one Global Security will
be issued to represent each $150,000,000
principal amount of such Book-Entry Note or
Notes and an additional Global Security will
be issued to represent any remaining principal
amount of such Book-Entry Note or Notes. In
such a case, each of the Global Securities
representing such Book-Entry Note or Notes
shall be assigned the same CUSIP number.
Interest: General. Interest on each Book-Entry Note
will accrue from and including the Original
Issue Date of the Global Security representing
such Note for the first interest period and
from the most recent date to which interest
has been paid for all subsequent interest
periods. Each payment of interest on a
Book-Entry Note will include interest accrued
to but excluding the Interest Payment Date;
provided that in the case of Floating Rate
Notes that reset daily or weekly, interest
payments will include interest accrued to and
including the Regular Record Date immediately
preceding the Interest Payment Date, except
that at maturity or earlier redemption, the
interest payable will include interest accrued
<PAGE>
to, but excluding, the maturity date or the
date of redemption, as the case may be.
Interest payable at the maturity or upon
redemption of a Book-Entry Note will be
payable to the person to whom the principal of
such Note is payable. Standard & Poor's
Corporation will use the information received
in the pending deposit message described under
Settlement Procedure "C" below in order to
include the amount of any interest payable and
certain other information regarding the
related Global Security in the appropriate
weekly bond report published by Standard &
Poor's Corporation.
Regular Record Dates. The Regular Record Date
with respect to any Interest Payment Date
shall be the date fifteen calendar days
immediately preceding such Interest Payment
Date.
Fixed Rate Book-Entry Notes. Unless otherwise
specified in the applicable Pricing
Supplement, interest payments on Fixed Rate
Book-Entry Notes will be made semiannually on
March 15 and September 15 of each year and at
maturity or upon any earlier redemption;
provided, however, that in the case of a Fixed
Rate Book-Entry Note issued between a Regular
Record Date and an Interest Payment Date, the
first interest payment will be made on the
Interest Payment Date following the next
succeeding Regular Record Date.
Floating Rate Book-Entry Notes. Interest
payments will be made on Floating Rate Book-
Entry Notes weekly, monthly, quarterly,
semiannually or annually. Unless otherwise
agreed upon, interest will be payable, in the
case of Floating Rate Book-Entry Notes with a
daily, weekly or monthly Interest Reset Date,
on the third Wednesday of each month, on the
third Wednesday of March, June, September and
December, on the third Wednesday of June and
December of each year, or as specified
pursuant to Settlement Procedure "A" below; in
the case of Notes with a quarterly Interest
Reset Date, on the third Wednesday of March,
June, September and December of each year; in
the case of Notes with a semi-annual Interest
Reset Date, on the third Wednesday of the two
months of each year specified pursuant to
Settlement Procedure "A" below; and in the
case of Notes with an annual Interest Reset
Date, on the third Wednesday of the month of
each year specified pursuant to Settlement
Procedure "A" below; provided, however, that
if any Interest Payment Date for Floating Rate
Book-Entry Notes would otherwise be a day that
is not a Business Day with respect to such
Floating Rate Book-Entry Notes, such Interest
Payment Date will be the next succeeding
Business Day with respect to such Floating
<PAGE>
Rate Book-Entry Notes, except in the case of a
LIBOR Note, if such Business Day is in the
next succeeding calendar month, such Interest
Payment Date will be the Business Day
immediately preceding the day that would have
otherwise been such Interest Payment Date; and
provided, further, that in the case of a
Floating Rate Book-Entry Note issued between a
Regular Record Date and an Interest Payment
Date, the first interest payment will be made
on the Interest Payment Date following the
next succeeding Regular Record Date.
Calculation of Fixed Rate Book-Entry Notes. Unless otherwise
Interest: specified in the applicable Pricing
Supplement, interest on Fixed Rate Book-Entry
Notes (including interest for partial periods)
will be calculated on the basis of a year of
twelve thirty-day months.
Floating Rate Book-Entry Notes. Interest
rates on Floating Rate Book-Entry Notes will
be determined as set forth in the form of
Notes. Unless otherwise specified in the
applicable Pricing Supplement, interest on
Floating Rate Book-Entry Notes will be
calculated on the basis of actual days elapsed
and a year of 360 days except that in the case
of Treasury Rate Notes, interest will be
calculated on the basis of the actual number
of days in the year.
Payments of Promptly after each Regular Record Date, the
Principal and Trustee will deliver to the Company and DTC a
Interest: written notice specifying by CUSIP number the
amount of interest to be paid on each Global
Security on the following Interest Payment
Date (other than an Interest Payment Date
coinciding with maturity or any earlier
redemption date) and the total of such
amounts. DTC will confirm the amount payable
on each such Global Security on such Interest
Payment Date by reference to the daily bond
reports published by Standard & Poor's
Corporation. The Company will pay to the
Trustee, as paying agent, the total amount of
interest due on such Interest Payment Date
(other than at maturity, redemption), and the
Trustee will pay such amount to DTC at the
times and in the manner set forth below. If
any Interest Payment Date for a Fixed Rate
Book-Entry Note is not a Business Day, the
payment due on such day shall be made on the
next succeeding Business Day and no interest
shall accrue on such payment for the period
from and after such Interest Payment Date. If
any Interest Payment Date for a Floating Rate
Book-Entry Note is not a Business Day, the
payment due on such day shall be made on the
next succeeding Business Day and interest
shall accrue to, but not including, such next
succeeding Business Day, except that, in the
case of a Book-Entry LIBOR Note, if such
<PAGE>
Business Day is in the next calendar month,
such Interest Payment Date shall be the
Business Day immediately preceding the day
that would otherwise have been such Interest
Payment Date with respect to such Book-Entry
LIBOR Note.
On or about the first Business Day of each
month, the Trustee will deliver to the Company
and DTC a written list of principal and
interest to be paid on each Global Security
maturing either at maturity or on a redemption
date in the following month. The Company and
DTC will confirm the amounts of such principal
and interest payments with respect to each
such Global Security on or about the fifth
Business Day preceding the Maturity Date or
redemption date of such Global Security. The
Company will pay to the Trustee, as the
paying agent, the principal amount of such
Global Security, together with interest due at
such Maturity Date or redemption date. The
Trustee will pay such amounts to DTC at the
times and in the manner set forth below. If
any Maturity Date or redemption date of a
Global Security representing a Fixed Rate
Book-Entry Note is not a Business Day, the
payment due on such day shall be made on the
next succeeding Business Day and no interest
shall accrue on such payment for the period
from and after such Maturity Date or
redemption date. If any Maturity Date or
redemption date of a Global Security
representing Floating Rate Book-Entry Notes is
not a Business Day, the payment due on such
day shall be made on the next succeeding
Business Day with respect to such Note and
interest shall accrue to but not including
such next succeeding Business Day, except
that, in the case of a Book-Entry LIBOR Note,
if such Business Day is in the next succeeding
calendar month, such Maturity Date or
redemption date shall be the Business Day
immediately preceding the day that would
otherwise have been such Maturity Date or
redemption date with respect to such Book-
Entry LIBOR Note. Promptly after payment to
DTC of the principal and interest due on the
Maturity Date or redemption date of such
Global Security, the Trustee will cancel such
Global Security in accordance with the terms
of the Indenture and deliver it to the
Company.
The total amount of any principal and interest
due on Global Securities on any Interest
Payment Date or at maturity or upon redemption
shall be paid by the Company to the Trustee in
funds available for immediate use by the
Trustee on such date. The Company will make
such payment on such Global Securities by
instructing the Trustee to withdraw funds from
an account maintained by the Company at the
<PAGE>
Trustee. The Company will confirm such
instructions in writing to the Trustee. On
each Maturity Date or redemption date or as
soon as possible thereafter, the Trustee will
pay by separate wire transfer (using Fedwire
message entry instructions in a form
previously specified by DTC) to an account at
the Federal Reserve Bank of New York
previously specified by DTC in funds
immediately available on such date, each
payment of interest or principal (together
with interest thereon) due on Global
Securities on any Maturity Date or redemption
date. On each Interest Payment Date, interest
payments shall be made to DTC in same-day
funds in accordance with existing arrangements
between the Trustee and DTC.
Thereafter on each such date, DTC will pay, in
accordance with its SDFS operating procedures
then in effect, such amounts in funds
available for immediate use to the respective
Participants in whose names the BookEntry
Notes represented by such Global Securities
are recorded in the book-entry system
maintained by DTC. Neither the Company nor
the Trustee shall have any responsibility or
liability for the payment by DTC to such
Participants of the principal of and interest
on the Book-Entry Notes.
The amount of any taxes required under
applicable law to be withheld from any
interest payment on a Book-Entry Note will be
determined and withheld by the Participant,
indirect participant in DTC or other person
responsible for forwarding payments directly
to the beneficial owner of such Note.
The Trustee will be responsible for
withholding taxes or interest paid on Notes as
required by applicable law.
Preparation of If any order to purchase a Book-Entry Note is
Pricing of the accepted by or on behalf Company, the Company
Supplement: will prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such Note
and will arrange to file 10 copies of such
Pricing Supplement with the Commission in
accordance with the allocable paragraph of
Rule 424(b) under the Securities Act of 1933,
as amended (the "Act"), and will deliver the
number of copies of such Pricing Supplement to
the Agent as the Agent shall request by the
close of business on the following Business
Day. The Agent will cause such Pricing
Supplement to be delivered to the purchaser of
the Note.
In each instance that a Pricing Supplement is
prepared, the Agent receiving such Pricing
Supplement will affix the Pricing Supplement
to a Prospectus (as defined in the
<PAGE>
Distribution Agreement) prior to its use.
Outdated Pricing Supplements will be
destroyed.
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry
Note and the authentication and issuance of
the Global Security representing such Note
shall constitute "settlement" with respect to
such Note. All orders accepted by the Company
will be settled on or before the fifth
Business Day next succeeding the date of
acceptance pursuant to the timetable for
settlement set forth below, unless the
Company, the Trustee and the purchaser agree
to settlement on another day.
Settlement Settlement Procedures with regard to each
Procedures: Book-Entry Note sold by the Company to or
through the Agent (except pursuant to a Terms
Agreement, as defined in the Distribution
Agreement) shall be as follows:
A. The Agent will advise the Company by
telephone that such Note is a Book-Entry
Note and of the following settlement
information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-
Entry Note, the Interest Rate, or,
in the case of a Floating Rate Book-
Entry Note, the Initial Interest
Rate (if known at such time),
Calculation Agent, Base Rate, Index
Maturity, Interest Reset Period,
Interest Reset Dates, Spread or
Spread Multiplier (if any), Maximum
Interest Rate (if any) and the
Alternate Rate Event Spread (if
any).
4. The Interest Payment Date(s) and
Interest Payment Period.
5. Redemption provisions, if any.
6. Original Issuance Date (Settlement
date).
7. Initial offering price.
8. Agent's commission, if any,
determined as provided in the
Distribution Agreement.
9. Any other applicable Terms.
B. The Company will advise the Trustee by
telephone or electronic transmission
<PAGE>
(confirmed in writing at any time on the
same date) of the information set forth
in Settlement Procedure "A" above. The
Company will then assign a CUSIP number
to the Global Security representing such
Note and will notify the Trustee and the
Agent of such CUSIP number by telephone
as soon as practicable.
C. The Trustee will enter a pending deposit
message through DTC's Participant
Terminal System, providing the following
settlement information to DTC, the Agent,
Standard & Poor's Corporation and
Interactive Data Corporation:
1. The information set forth in
Settlement Procedure "A".
2. The Initial Interest Payment Date
for such Note, the number of days by
which such date succeeds the related
DTC Record Date (which in the case
of Floating Rate Notes which reset
daily or weekly, shall be the date
five calendar days immediately
preceding the applicable Interest
Payment Date and, in the case of all
other Notes, shall be the Regular
Record Date as defined in the Note)
and, if known, amount of interest
payable on such initial Interest
Payment Date.
3. The CUSIP number of the Global
Security representing such Note.
4. The numbers of the partici- pants'
accounts maintained by DTC on
behalf of the Trustee and the Agent.
5. Whether such Global Security will
represent any other Book-Entry Note
(to the extent known at such time).
D. The Trustee will complete and
authenticate the Global Security
representing such Note.
E. DTC will credit such Note to the
Trustee's participant account at DTC.
F. The Trustee will enter an SDFS deliver
order through DTC's Participant Terminal
System instructing DTC to (i) debit such
Note to the Trustee's participant account
and credit such Note to the Agent's
participant account and (ii) debit the
Agent's settlement account and credit the
Trustee's settlement account for an
amount equal to the price of such Note
less the Agent's commission, if any. The
entry of such a deliver order shall
<PAGE>
constitute a representation and warranty
by the Trustee to DTC that (a) the Global
Security representing such Book-Entry
Note has been issued and authenticated
and (b) the Trustee is holding such
Global Security pursuant to the Medium
Term Note Certificate Agreement between
the Trustee and DTC.
G. Unless the Agent purchased such Note as
principal, the Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to
debit such Note to the Agent's
participant account and credit such Note
to the participant accounts of the Parti-
cipants with respect to such Note and
(ii) to debit the settlement accounts of
such Participants and credit the
settlement account of the Agent for an
amount equal to the price of such Note.
H. Transfers of funds in accordance with
SDFS deliver orders described in
Settlement Procedures "F" and "G" will be
settled in accordance with SDFS operating
procedures in effect on the settlement
date.
I. The Trustee will credit to the account of
the Company maintained at
located in [New York City] Account No.
(or at such other account at
such other bank in the United States as
the Company may, from time to time,
notify the Agents) in funds available for
immediate use in the amount transferred
to the Trustee in accordance with
Settlement Procedure "F".
J. Unless the Agent purchased such Note as
principal, the Agent will confirm the
purchase of such Note to the purchaser
either by transmitting to the
Participants with respect to such Note a
confirmation order or orders through
DTC's institutional delivery system or by
mailing a written confirmation to such
purchaser.
K. Monthly, the Trustee will send to the
Company a statement setting forth the
principal amount of Notes Outstanding as
of that date under the Indenture.
Settlement For sales by the Company of Book-Entry Notes
Procedures to or through the Agent (except pursuant to a
Timetable: Terms Agreement) for settlement on the first
Business Day after the sale date, Settlement
Procedures "A" through "J" set forth above
shall be completed as soon as possible but not
later than the respective times (New York City
time) set forth below:
<PAGE>
Settlement
Procedure Time
A 11:00 A.M. on the sale
date
B 12:00 Noon on the sale
date
C 2:00 P.M. on the sale date
D 9:00 A.M. on settlement
date
E 10:00 A.M. on settlement
date
F-G 2:00 P.M. on settlement
date
H 4:45 P.M. on settlement
date
I-J 5:00 P.M. on settlement
date
If a sale is to be settled more than one
Business Day after the sale date, Settlement
Procedures "A", "B" and "C" shall be completed
as soon as practicable but no later than 11:00
A.M., 12:00 noon and 2:00 P.M., (New York City
time) respectively, on the first Business Day
after the sale date. If the Initial Interest
Rate for a Floating Rate Book-Entry Note has
not been determined at the time that
Settlement Procedure "A" is completed,
Settlement Procedure "B" and "C" shall be
completed as soon as such rate has been
determined but no later than 12:00 noon and
2:00 P.M. (New York City time), respectively,
on the second Business Day before the settle-
ment date. Settlement Procedure "H" is
subject to extension in accordance with any
extension of Fedwire closing deadlines and in
the other events specified in the SDFS
operating procedures in effect on the
settlement date.
If settlement of a Book-Entry Note is
rescheduled or cancelled, the Trustee, after
receiving notice from the Company or the
Agent, will deliver to DTC, through DTC's
Participant Terminal System, a cancellation
message to such effect by no later than 2:00
P.M. (New York City time) on the Business Day
immediately preceding the scheduled settlement
date.
Failure to If the Trustee fails to enter an SDFS deliver
deliver Settle: order with respect to a Book-Entry Note
pursuant to Settlement Procedure "F", upon
written direction from the Company, the
Trustee may deliver to DTC, through DTC's
Participant Terminal System, as soon as
practicable a withdrawal message instructing
DTC to debit such Note to the Trustee's
participant account, provided that the
Trustee's participant account contains a
principal amount of the Global Security
representing such Note that is at least equal
<PAGE>
to the principal amount to be debited. If a
withdrawal message is processed with respect
to all the Book-Entry Notes represented by a
Global Security, the Trustee will mark such
Global Security "cancelled", make appropriate
entries in the Trustee's records and send such
cancelled Global Security to the Company. The
CUSIP number assigned to such Global Security
shall, in accordance with CUSIP Service Bureau
procedures, be cancelled and not immediately
reassigned. If a withdrawal message is
processed with respect to one or more, but not
all, of the Book-Entry Notes represented by a
Global Security, the Trustee will exchange
such Global Security for two Global
Securities, one of which shall represent such
Book-Entry Note or Notes and shall be
cancelled immediately after issuance and the
other of which shall represent the remaining
Book-Entry Notes previously represented by the
surrendered Global Security and shall bear the
CUSIP number of the surrendered Global
Security.
If the purchase price for any Book-Entry Note
is not timely paid to the Participants with
respect to such Note by the beneficial
purchaser thereof (or a person, including an
indirect participant in DTC, acting on behalf
of such purchaser), such Participants and, in
turn, the Agent may enter SDFS deliver orders
through DTC's Participant Terminal System
reversing the orders entered pursuant to
Settlement Procedures "F" and "G",
respectively. Thereafter, the Trustee will
deliver the withdrawal message and take the
related actions described in the preceding
paragraph.
Notwithstanding the foregoing, upon any
failure to settle with respect to a Book-Entry
Note, DTC may take any actions in accordance
with its SDFS operating procedures then in
effect.
In the event of a failure to settle with
respect to one or more, but not all, of the
Book-Entry Notes to have been represented by a
Global Security, the Trustee will provide, in
accordance with Settlement Procedures "D" and
"F", for the authentication and issuance of a
Global Security representing the Book-Entry
Notes to be represented by such Global
Security and will make appropriate entries in
its records.
Risk of Funds by Nothing herein shall be deemed to require the
Trustee: Trustee to risk or expend its own funds in
connection with any payments to the Company,
the Agents or DTC or any holder, it being
understood by all parties that payments made
by the Trustee to the Company or the Agents,
or DTC, or any holder shall be made only to
<PAGE>
the extent that funds are provided to the
Trustee for such purpose.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
Issuance: Each Note will be dated and issued as of the
date of its authentication by the Trustee.
Each Note will bear an Original Issue Date,
which will be (i) with respect to an Original
Note (or any portion thereof), its original
issuance date (which will be the settlement
date) and (ii) with respect to any Note (or
portion thereof) issued subsequently upon
transfer or exchange of a Note or in lieu of a
destroyed, lost or stolen Note, the original
issuance date of the predecessor Note,
regardless of the date of authentication of
such subsequently issued Note. The principal
of and interest on the Notes will be payable
in U.S. dollars only.
Registration: Notes will be issued only in fully registered
form without coupons.
Transfers and or A Note may be presented for transfer exchange
Exchanges: at the principal corporate trust office of the
Trustee in the City of New York. Notes will
be exchangeable for other Notes having
identical terms but different denominations
without service charge. Notes will not be
exchangeable for Book-Entry Notes.
Maturities: Each Note will mature on a date from nine
months to 30 years from its date of issue.
Denomination: Unless otherwise specified in the applicable
Pricing Supplement, the denomination of any
Note will be a minimum of $100,000 or any
amount in excess thereof that is an integral
multiple of $1,000.
Interest: General. Interest on each Note will accrue
from and including the Original Issue Date of
such Note for the first interest period and
from the most recent date to which interest
has been paid for all subsequent interest
periods. Each payment of interest on a Note
will include interest accrued to but excluding
the Interest Payment Date; provided that in
the case of Floating Rate Notes which reset
daily or weekly, interest payment will include
interest accrued to and including the Regular
Record Date immediately preceding the Interest
Payment Date, except that at maturity or
earlier redemption, the interest payable will
include interest accrued to, but excluding,
the Maturity Date or the date of redemption or
repayment, as the case may be.
Fixed Rate Notes. Unless otherwise specified
pursuant to Settlement Procedure "A" below,
interest payments on Fixed Rate Notes, will be
<PAGE>
made semi-annually on March 15 and September
15 of each year and at maturity or upon any
earlier redemption; provided, however, that if
an Interest Payment Date for a Fixed Rate Note
would otherwise be a day that is not a
Business Day, the payment due on such day
shall be made on the next succeeding Business
Day and no interest shall accrue on such
payment from and after such Interest Payment
Date; and provided, further, that in the case
of Fixed Rate Notes issued between a Regular
Record Date and an Interest Payment Date, the
first interest payment will be made on the
Interest Payment Date following the next
succeeding Regular Record Date.
Floating Rate Notes. Interest payments will
be made on Floating Rate Notes weekly,
monthly, quarterly, semi-annually or annually.
Interest will be payable, in the case of
Floating Rate Notes with a daily, weekly or
monthly Interest Reset Date, on the third
Wednesday of each month, on the third
Wednesday of March, June, September and
December or on the third Wednesday of June and
December, as specified pursuant to Settlement
Procedure "A" below; in the case of Notes with
a quarterly Interest Reset Date, on the third
Wednesday of March, June, September and
December of each year; in the case of Notes
with a semi-annual Interest Reset Date, on the
third Wednesday of the two months of each year
specified pursuant to Settlement Procedure "A"
below; and in the case of Notes with an annual
Interest Reset Date, on the third Wednesday of
the month of each year specified pursuant to
Settlement Procedure "A" below; provided,
however, that if an Interest Payment Date for
Floating Rate Notes would otherwise be a day
that is not a Business Day, such Interest
Payment Date will be the next succeeding
Business Day, except that in the case of a
LIBOR Note, if such Business Day is in the
next succeeding calendar month, such Interest
Payment Date will be the Business Day
immediately preceding such day that would have
otherwise been such Interest Payment Date; and
provided, further, that in the case of a
Floating Rate Note issued between a Regular
Record Date and an Interest Payment Date, the
first interest payment will be made on the
Interest Payment Date following the next
succeeding Regular Record Date.
Calculation of Fixed Rate Notes. Unless otherwise
Interest: specified in a Pricing Supplement, interest on
Fixed Rate Notes (including interest for
partial periods) will be calculated on the
basis of a year of twelve thirty-day months.
Floating Rate Notes. Interest rates on
Floating Rate Notes will be determined as set
forth in the form of such Notes. Unless
<PAGE>
otherwise specified in a Pricing Supplement,
interest on Floating Rate Notes will be
calculated on the basis of actual days elapsed
and a year of 360 days except that in the case
of Treasury Rate Notes, interest will be
calculated on the basis of the actual number
of days in the year.
Payments of The Trustee will pay the principal amount and
Principal and premium, if any, of each Note at maturity or
Interest: upon redemption or upon presentation and sur-
render of such Note to the Trustee. Such
payment, together with payment of interest due
at maturity of such Note, will be made in
funds available for immediate use by the
Trustee and in turn by the holder of such Note
by check or, at the option of the holder, by
wire transfer of immediately available funds
if appropriate wire transfer instructions have
been received by the Trustee not later than
the 10 calendar days prior to the Maturity
Date or redemption date. Notes presented to
the Trustee at maturity or upon redemption for
payment will be cancelled by the Trustee and
delivered to the Company with a certificate of
cancellation. All interest payments in U.S.
dollars on a Note (other than interest due at
maturity or upon redemption) will be made by
check drawn on the Trustee (or another Person
appointed by the Trustee) and mailed by the
Trustee to the Person entitled thereto as
provided in such Note and the Indenture;
provided, however, that the holder of (or the
equivalent thereof in another currency or
composite currency) $10,000,000 or more of
Notes having the identical terms and
provisions will be entitled to receive payment
by wire transfer of immediately available
funds if appropriate wire transfer
instructions have been received by the Trustee
not later than the Regular Record Date
applicable to such Interest Payment Date.
Interest payments on Notes in a Specified
Currency other than U.S. dollars will be made
by check or, at the option of the holder of
the Note, by wire transfer of immediately
available funds if appropriate wire transfer
instructions have been received by the Trustee
not later than the Regular Record Date
applicable to such Interest Payment Date.
Following each Regular Record Date, the
Trustee will furnish the Company with a list
of interest payments to be made on the
following Interest Payment Date for each Note
and in total for all Notes. Interest at
maturity will be payable to the person to whom
the payment of principal is payable. The
Trustee will provide monthly to the Company
lists of principal and interest to be paid on
Notes maturing in the next month. The Trustee
will be responsible for withholding taxes on
interest paid on Notes as required by
applicable law.
<PAGE>
If any Interest Payment Date or the Maturity
Date or redemption date of a Fixed Rate Note
is not a Business Day, the payment due on such
day shall be made on the next succeeding
Business Day and no interest shall accrue on
such payment for the period from and after
such Interest Payment Date, Maturity Date or
redemption date, as the case may be. If any
Interest Payment Date or the Maturity Date or
redemption date for any Floating Rate Note
would fall on a day that is not a Business
Day, such Interest Payment Date or the
Maturity Date or redemption date will be the
following day that is a Business Day with
respect to such Note, and interest shall
accrue to, but not including, such next
succeeding Business Day except that, in the
case of a LIBOR Note, if such Business Day is
in the next succeeding calendar month, such
Interest Payment Date or the Maturity Date or
redemption date shall be the Business Day
immediately preceding the day that would
otherwise have been such Interest Payment Date
or Maturity Date or redemption date with
respect to such LIBOR Note.
Preparation If any order to purchase a Note is accepted by
of Pricing or on behalf of the Company, the Company will
Supplement: prepare a pricing supplement (a "Pricing
Supplement") reflecting the terms of such Note
and will arrange to file 10 copies of such
Pricing Supplement with the Commission in
accordance with the applicable paragraph of
Rule 424(b) under the Act, will deliver the
number of copies of such Pricing Supplement to
the Agent which solicited such offer to
purchase as such Agent shall request by the
close of business on the following Business
Day. Such Agent will cause such Pricing
Supplement to be delivered to the purchaser of
the Note.
In each instance that a Pricing Supplement is
prepared, such Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements will be
destroyed.
Settlement: The receipt by the Company of immediately
available funds in exchange for an
authenticated Note delivered to the Agent
which solicited such offer to purchase and
such Agent's delivery of such Note against
receipt of immediately available funds shall
constitute "settlement" with respect to such
Note. All orders accepted by the Company will
be settled on or before the fifth Business Day
next succeeding the date of acceptance
pursuant to the timetable for settlement set
forth below, unless the Company, the Trustee
and the purchaser agree to settlement on
another date.
<PAGE>
Settlement Settlement Procedures with regard to each Note
Procedures: sold by the Company to or through an Agent
(except pursuant to a Terms Agreement) shall
be as follows:
A. The Agent which solicited such offer to
purchase will advise the Company by
telephone the following settlement
information:
1. Name in which such Note is to be
registered ("Registered Owner").
2. Address of the Registered Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of
the Registered Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Note,
the Interest Rate, or, in the case
of a Floating Rate Note, the Initial
Interest Rate (if known at such
time), Calculation Agent, Base Rate,
Index Maturity, Interest Reset
Period, Interest Reset Dates, Spread
or Spread Multiplier (if any),
Minimum Interest Rate (if any),
Maximum Interest Rate (if any), and
the Alternate Rate Event Spread (if
any).
7. The Interest Payment Date(s) and
Interest Payment Period.
8. Redemption provisions, if any.
9. Original issuance date (Settlement
Date).
10. Initial Offering price.
11. Agent's commission, if any,
determined as provided in the
Distribution Agreement between the
Company and such Agent.
12. Denominations.
13. If applicable, wire transfer
instructions, including name of
banking institution where transfer
is to be made and account number.
14. Any other applicable terms.
B. The Company will advise the Trustee by
telephone or electronic transmission
<PAGE>
(confirmed in writing at any time on the
sale date) of the information set forth
in Settlement Procedure "A" above.
C. The Company will have delivered to the
Trustee a pre-printed four-ply packet for
such Note, which packet will contain the
following documents in forms that have
been approved by the Company, such Agent
and the Trustee:
1. Note with customer confirmation.
2. Stub One - For the Agent.
3. Stub Two - For such Trustee.
4. Stub Three - For the Company.
D. The Trustee will complete such Note and
authenticate such Note and deliver it
(with the confirmation) and Stubs One and
Two to such Agent, and such Agent will
acknowledge receipt of the Note by
stamping or otherwise marking Stub Two
and returning it to the Trustee. Such
delivery will be made only against such
acknowledgment of receipt and evidence
that instructions have been given by such
Agent for payment to the account of the
Company at , Account
No. (or at such other account
at such other bank in the United States
as the Company may, from time to time,
notify the Agents), in funds available
for immediate use, of an amount equal to
the price of such Note less such Agent's
commission, if any. In the event that
the instructions given by such Agent for
payment to the account of the Company are
revoked, the Company will as promptly as
possible wire transfer to the account of
such Agent an amount of immediately
available funds equal to the amount of
such payment made.
E. Unless such Agent purchased such Note as
principal, such Agent will deliver such
Note (with confirmation) to the customer
against payment in immediately available
funds. Such Agent will obtain the
acknowledgment of receipt of such Note by
retaining Stub One.
F. The trustee will send Stub Three to the
Company by first-class mail.
Periodically, the Trustee will also send
to the Company a statement setting forth
the principal amount of the Notes
Outstanding as of that date under the
Indenture.
<PAGE>
Settlement For sales by the Company of Notes to or
Procedures through an Agent (except pursuant to a Terms
Timetable: Agreement), Settlement Procedures "A" through
"F" set forth above shall be completed on or
before the respective times (New York City
time) set forth below:
Settlement
Procedure Time
A 2:00 P.M. on the second
Business Day before settlement
date
B 3:00 P.M. on the second
Business Day before settlement
date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure to If a purchaser fails to accept delivery of or
Settle: make payment for any Note, the Agent which
solicited the offer to purchase such Note will
notify the Company and the Trustee by
telephone and return such Note to the Trustee.
Upon receipt of such notice, the Company will
immediately wire transfer to the account of
such Agent an amount equal to the amount
previously credited thereto in respect of such
Note. Such wire transfer will be made on the
settlement date, if possible, and in any event
not later than the Business Day following the
settlement date. If the failure shall have
occurred for any reason other than a default
by such Agent in the performance of its
obligations hereunder and under the
Distribution Agreement with the Company, then
the Company will reimburse the Agent or the
Trustee, as appropriate, on an equitable basis
for its loss of the use of the funds during
the period when they were credited to the
account of the Company. Immediately upon
receipt of the Note in respect of which such
failure occurred, the Trustee will mark such
Note "cancelled", make appropriate entries in
the Trustee's records and send such Note to
the Company.
Risk of Funds by Nothing herein shall be deemed to require the
Trustee: Trustee to risk or expend its own funds in
connection with any payments to the Company,
the Agents or any holder, it being understood
by all parties that payments made by the
Trustee to the Company or the Agents or any
holder shall be made only to the extent that
funds are provided to the Trustee for such
purpose.
<PAGE>
NEWMONT GOLD COMPANY
AND
THE BANK OF NEW YORK,
TRUSTEE
INDENTURE
Dated as of , 1994
NEWMONT GOLD COMPANY
AND
THE BANK OF NEW YORK,
TRUSTEE
INDENTURE
Dated as of , 1994
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:
<TABLE>
Section Subject Section Subject
<S> <C> <C> <C>
310(b) Disqualification of 315(c) Duties of claims
Trustee for conflicting Trustee in
Securityholders case of default
311 Preferential collection 315(d) Provisions
of Trustee as relating to
creditor of Issuer responsibility of
Trustee
312(a) Periodic filing of 315(e) Assessment of
<PAGE>
information by costs against
Issuer with Trustee litigating
Securityholders in
certain cir-
cumstances
312(b) Access of Security- 316(a) Directions to
holders to information and waivers
by Securityholders
in certain cir-
cumstances
313(b) Additional reports of 316(b) Prohibition or
Trustee to Security- impairment of
holders right of Security-
holders to payment
314(c) Evidence of compliance 316(c) Right of Issuer
with conditions to set record
precedent date for certain
purposes
315(a) Duties of Trustee prior 317(a) Special powers of
to default Trustee
315(b) Notice of default 318(a) Provisions of Act
from Trustee to to control in case
Securityholders of conflict
</TABLE>
<TABLE>
TABLE OF CONTENTS
Page
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS
Authorization of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Compliance with Legal Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Purpose of and Consideration for Indenture . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Attributable Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Consolidated Net Tangible Assets . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
covenant defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Dollar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
<PAGE>
Funded Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Market Exchange Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
New York Location . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Original issue date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Overdue Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Principal Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Security or Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Security registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
tranche . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . . . . . . . . 8
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . 8
vice president . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.2 Form of Face of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.3 Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.4 Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.5 Amount Unlimited; Issuable in Series. . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 2.6 Authentication and Delivery of Securities . . . . . . . . . . . . . . . . . . . . 20
SECTION 2.7 Execution of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.8 Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.9 Denomination and Date of Securities;
Payments of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 2.10 Registration, Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.11 Mutilated, Defaced, Destroyed, Lost
and Stolen Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 2.12 Cancellation of Securities Paid, etc. . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.13 Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.14 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.2 Offices for Payments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.3 Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.4 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 3.5 Limitation on Sales and Leasebacks . . . . . . . . . . . . . . . . . . . . . . . . 35
<PAGE>
SECTION 3.6 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 3.7 Calculation of Original Issue Discount . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.8 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.9 Compliance Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 4.2 Payment of Securities on Default; Suit Therefor . . . . . . . . . . . . . . . . . 41
SECTION 4.3 Application of Moneys Collected by Trustee . . . . . . . . . . . . . . . . . . . . 44
SECTION 4.4 Proceedings by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings . . . . . . . . . . . . . . . 45
SECTION 4.6 Proceedings by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 4.7 Remedies Cumulative and Continuing . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 4.8 Control by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 4.9 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Reliance on Documents, Opinions, etc.;
No Requirement for Expenditure of
of Own Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 5.2 No Responsibility for Recitals, etc . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 5.3 Trustee and Agents May Hold Securities . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 5.4 Moneys to Be Held in Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 5.5 Compensation and Expenses of Trustee . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 5.6 Right of Trustee to Rely on Officers' Certificate, etc. . . . . . . . . . . . . . 51
SECTION 5.7 Eligibility of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 5.8 Resignation or Removal of Trustee;
Appointment of Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 5.9 Acceptance of Appointment by Successor Trustee. . . . . . . . . . . . . . . . . . 54
SECTION 5.10 Merger, Conversion, Consolidation or
Succession to Business of Trustee . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 5.11 Reports by Trustee to Securityholders . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Action by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 6.2 Proof of Execution by Securityholders . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 6.3 Holders to Be Treated as Owners . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding . . . . . . . . . . . . . . . . 59
SECTION 6.5 Right of Revocation of Action Taken . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 6.6 Securityholders' Meetings; Purposes . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 6.7 Call of Meetings by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 6.8 Call of Meetings by Issuer or
Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 6.9 Qualifications for Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 6.10 Quorum; Adjourned Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 6.11 Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 6.12 Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 6.13 No Delay of Rights by Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 6.14 Written Consent in Lieu of Meeting . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
<PAGE>
SECTION 7.1 Supplemental Indentures Without Consent of Securityholders. . . . . . . . . . . . 65
SECTION 7.2 Supplemental Indentures With Consent of Securityholders . . . . . . . . . . . . . 67
SECTION 7.3 Effect of Supplemental Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 7.4 Certain Documents to Be Given to Trustee . . . . . . . . . . . . . . . . . . . . . 68
SECTION 7.5 Notation on Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 8.1 Issuer May Consolidate, etc., on Certain
Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 8.2 Successor Corporation to Be Substituted . . . . . . . . . . . . . . . . . . . . . 70
SECTION 8.3 Opinion of Counsel and Officers' Certificate to Be Given to Trustee . . . . . . . 70
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . 71
SECTION 9.2 Application by Trustee of Funds Deposited
for Payment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 9.3 Repayment of Moneys Held by Paying Agent . . . . . . . . . . . . . . . . . . . . . 72
SECTION 9.4 Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 9.5 Issuer's Option to Effect Defeasance or Covenant Defeasance . . . . . . . . . . . 73
SECTION 9.6 Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 9.7 Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 9.8 Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . 74
SECTION 9.9 Deposited Money and U.S. Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
ARTICLE TEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 10.1 Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 10.2 Notice of Redemption; Selection of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 10.3 Payment of Securities Called for Redemption . . . . . . . . . . . . . . . . . . . 79
SECTION 10.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption . . . . . . . . . . . . . . . . . . . 80
SECTION 10.5 Mandatory and Optional Sinking Funds . . . . . . . . . . . . . . . . . . . . . . 80
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of Issuer Exempt from
Individual Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 11.2 Provisions of Indenture for the Sole
Benefit of Parties and Securityholders . . . . . . . . . . . . . . . . . . . . 85
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture . . . . . . . . . . . . . . 85
SECTION 11.4 Notices and Demands on Issuer, Trustee and Securityholders . . . . . . . . . . . 85
SECTION 11.5 Officers' Certificates and Opinions of
Counsel; Statements to Be Contained
Therein . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 11.6 Official Acts by Successor Entity . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 11.7 Payments Due on Saturdays, Sundays
and Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 11.8 NEW YORK LAW TO GOVERN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 11.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
<PAGE>
SECTION 11.10 Effect of Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 11.11 Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . 88
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
</TABLE>
THIS INDENTURE, dated as of , 1994 between NEWMONT
GOLD COMPANY, a Delaware corporation (the "Issuer"), and THE BANK OF
NEW YORK, a New York banking corporation (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, 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 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.
<PAGE>
"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
vice chairman, the president, any 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 either the Board of Directors of
the Issuer or any committee of such Board of Directors duly authorized
to act hereunder.
"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 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.
"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.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any
particular time, be principally administered, which office is, at the
date as of which this Indenture is dated, located at 101 Barclay
Street, 21W, New York, New York 10286.
"covenant defeasance" and "defeasance" have the meanings
assigned to such terms, respectively, by Sections 12.2 and 12.3.
"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
<PAGE>
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" 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.
"Event of Default" means any event or condition specified as
such in Section 4.1.
"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 2.6
and bearing the legend prescribed in Section 2.6.
"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 Gold Company, 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.
"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 101 Barclay Street, Lobby Level,
Trust Services Window, New York, New York 10286.
"Officers' Certificate" when used with respect to the Issuer,
means a certificate signed by the chairman of the Board of Directors,
any vice chairman of the Board of Directors, the president or any vice
president and by the treasurer, controller, the secretary or any
assistant secretary of the Issuer and delivered to the Trustee. Each
such certificate shall include the statements required by the Trust
<PAGE>
Indenture Act of 1939 or as provided for in Section 11.5, 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 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 11.5, if and to the extent required hereby.
"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 2.11, 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 2.5) 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
<PAGE>
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".
"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
determina-tion 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.
"Register" has the meaning set forth in Section 2.10.
"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 2.5.
"Responsible Officer", when used with respect to the Trustee,
means the chairman of the board of directors, any vice chairman of the
board of directors, the chairman of the trust committee, the chairman
of the executive committee, any vice chairman of the executive
committee, the president, any vice president, the cashier, the
secretary, the treasurer, any senior trust officer, trust officer, any
assistant trust officer, any assistant vice president, any assistant
cashier, any assistant secretary, any assistant treasurer, 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 his 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.
"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
2.10.
<PAGE>
"series", as used in the definitions of "Indenture" and
"Overdue Rate" in this Section 1.1 and as used in Section 2.5 (except
as used in the first sentence of the second paragraph thereof and in
the first and last sentences of the third paragraph thereof), 2.9,
2.10, 2.11, 2.13, 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.
"Subsidiary" means any corporation of which at least a
majority of the outstanding stock having by the terms thereof ordinary
voting power for the election of directors of such corporation
(irrespective of whether or not at the time stock of any other class or
classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time directly or
indirectly owned 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.
"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.
"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.
"U.S. Government Obligations" has the meaning set forth in
Section 12.4.
"vice president", when used with respect to the Issuer or the
Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title of "vice
president".
"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
<PAGE>
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.
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 GOLD COMPANY
[Insert Designation of Series]
Newmont Gold Company, 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 inter-
est]. 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 or (whether or not a Business
Day) (the "Record Date"), 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
<PAGE>
pursuant to Section 2.5, 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.]
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 pay-
ment], 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 GOLD COMPANY
By
Attest:
<PAGE>
SECTION 2.3 Form of Reverse of Security.
NEWMONT GOLD COMPANY
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 , 1994
(herein called the "Indenture"), between the Issuer and The Bank of New
York, 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 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 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).
[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,
<TABLE>
<S> <C> <C>
[[If applicable,
Redemption Price insert --
For Redemption Price
[[if applicable, For Redemption
insert -- Otherwise Than
Through Operation Through Operation
of the of the
Year Sinking Fund]] Sinking Fund]]
</TABLE>
<PAGE>
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
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.]
[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 re-
payment price equal to the principal amount thereof to be repaid,
<PAGE>
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 and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Issuer 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 con-
clusive 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 at-
<PAGE>
torney 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 autho-
rized 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 Trustee and any agent of the Issuer 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 neither the Issuer, the Trustee nor 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 any claim based hereon or otherwise in
respect hereof, and no recourse under or upon any obligation, covenant
or agreement of the Issuer 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 of any successor entity, either directly or
through the Issuer or any successor corporation, 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.
SECTION 2.4 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: THE BANK OF NEW YORK,
as Trustee
<PAGE>
By
Authorized Signatory
SECTION 2.5 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. 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
2.10, 2.11, 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) in which the Securities of the series shall
be denominated and, if different, the coin or currency (including
composite currencies) in which payment of the principal of and/or
interest on the Securities of the series shall be payable;
<PAGE>
(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) 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) 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 $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) 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) 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 2.5
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 2.6 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, 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 vice chairman, its president or any vice president and
(b) its treasurer, its controller, its secretary or any assistant
secretary, without any further action by the Issuer. In authenticating
such Securities and accepting the additional responsibilities under
<PAGE>
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
the Issuer;
(2) an executed supplemental indenture, if any, relating
thereto;
(3) an Officers' Certificate setting forth the form and
terms of the Securities as required pursuant to Sections 2.1 and
2.5, respectively, and prepared in accordance with the
requirements of the Trust Indenture Act of 1939 and Section 11.5;
(4) an Opinion of Counsel, prepared in accordance with the
requirements of the Trust Indenture Act of 1939 and Section 11.5,
which shall state that (i) if the form of such Securities has been
established by or pursuant to a Resolution as permitted by Section
2.1, that such form or forms, as the case may be, have been esta-
blished in conformity with the provisions of this Indenture, and
that the terms of such Securities have been established by or
pursuant to a Resolution as permitted by Section 2.5 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.
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 2.5 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
<PAGE>
more Global Securities 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 2.5 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 2.7 Execution of Securities. The Securities shall
be signed on behalf of the Issuer by the chairman or any vice chairman
of its Board of Directors, its president, any 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.
SECTION 2.8 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, executed by the Trustee
by the manual signature of one of its authorized signatories, shall be
entitled to the benefits of this Indenture or 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 2.9 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 2.5. 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 ap-
proval of the Trustee as evidenced by the execution and authentication
thereof.
<PAGE>
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 2.5.
Except as otherwise specified for a particular series
pursuant to Section 2.5, 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 notwith-
standing 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 2.10 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
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 and the Trustee shall authenticate and
<PAGE>
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 2.13, 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 2.10,
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
<PAGE>
eligible under Section 2.6, 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 2.5 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 2.5 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, 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 2.10 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 2.11 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 and the Trustee shall authenticate and
<PAGE>
make available for delivery, a new Security of the same series and of
like tenor, bearing a number or other distinguishing symbol not contem-
poraneously 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 and to the Trustee (and
any agent of the Issuer or Trustee, if requested by the Issuer) 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 destruc-
tion, 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 and to the Trustee (and any agent of the Issuer
or Trustee, if requested by the Issuer) 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 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, 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 re-
placement 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 2.12 Cancellation of Securities Paid, etc. All
Securities surrendered for the purpose of payment, redemption,
registration of transfer or exchange, or for credit against any payment
in respect of a sinking or analogous fund, if surrendered to the
Issuer, any Security registrar, any paying agent or any other agent of
the Issuer or any agent of the Trustee, shall be delivered to the
Trustee and promptly cancelled by it or, if surrendered to the Trustee,
shall be promptly cancelled 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 deliver cancelled Securities 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.
<PAGE>
SECTION 2.13 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). 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 sub-
stantially 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 and shall furnish definitive Securities
of such series and thereupon temporary Securities of such series may be
surrendered in exchange therefor without charge at each office or
agency to be maintained by the 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 2.14 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.
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. Except as otherwise provided pursuant to Section 2.5
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, (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 de-
<PAGE>
mands 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 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
<PAGE>
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
by the Issuer or any Restricted Subsidiary, or any shares of stock or
Debt of 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 Sub-
sidiaries 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
Debt of, any corporation existing at the time such corporation
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, landlord's 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,
<PAGE>
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;
(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 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 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 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 ex-
tended, renewed or replaced (plus improvements on such property)
and (ii) the Debt secured by such Mortgage at such time is not
increased
; and provided further, that these restrictions shall not apply to (i)
any gold-based loan or forward sale, 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 Subsid-
iary for a period, including renewals, in excess of three years, of any
<PAGE>
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 Res-
tricted 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 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 vice chairman, the president, any
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 any Officer 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. The Issuer shall comply with the
provisions of Section 314(a) of the Trust Indenture Act of 1939 and
shall file with the Trustee within 45 days after it files them with the
<PAGE>
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.
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), the Issuer will file with the Trustee
a brief certificate, signed by the principal executive officer, the
principal financial officer, or the principal accounting officer of the
Issuer, stating whether or not the signer has knowledge of any default
by the Issuer 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 also shall comply with the other provisions
of Section 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 2.5, 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 2.5, 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 con-
templated by Section 2.5:
(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
<PAGE>
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 by the Trustee or to the Issuer
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 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 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 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 for all or substantially all of
its property, or make any general assignment for the benefit of
creditors.
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 Securi-
ties 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 2.5 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.
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 2.5 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 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 in-
<PAGE>
terest 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 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 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 2.5.
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 2.5.
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
<PAGE>
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 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 or such other obligor, or in
case of any other similar judicial proceedings relative to the Issuer
or other obligor upon the Securities of any series, or to the creditors
or property of the Issuer 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:
(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 or other obligor upon the Securities of any series, or
to the creditors or property of the Issuer 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
<PAGE>
(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.
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. 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
<PAGE>
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
FOURTH: To the payment of the remainder, if any, to the
Issuer or any other person lawfully entitled thereto.
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 and
the Trustee shall be restored respectively to their former positions
and rights hereunder, and all rights, remedies and powers of the Is-
suer, 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
<PAGE>
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 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 direc-
tors, 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
<PAGE>
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 Securi-
ties 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.
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
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;
(c) the Trustee may consult with counsel 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
<PAGE>
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 in-
vestigation 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 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; and
(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.
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 if
there shall be reasonable grounds for believing that the repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it. 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 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 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 or the Trustee, in its individual or
any other capacity, may become the owner or pledgee of Securities with
<PAGE>
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 receive, collect, hold and
retain collections from the Issuer 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 of 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 addi-
tional 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 of this
Indenture the Trustee shall deem it necessary or desirable that a
<PAGE>
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 ab-
sence 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 $5,000,000. 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. 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 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 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 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
<PAGE>
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 the evidence provided for in
Section 6.1 of the action in that regard taken by the Securityholders.
(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 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
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 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
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
<PAGE>
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
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 or consolidation, in the
name of any predecessor hereunder; and in all such cases such certifi-
cate 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 March 15 in each year, beginning with the March 15
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 Section 313(a) of the Trust Indenture Act of 1939. The
Trustee also shall comply with Section 313(b) of the Trust Indenture
Act of 1939. The Trustee shall also transmit by mail all reports as
required by Section 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.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
<PAGE>
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 in-
struments and any such record of such a meeting of such Security-
holders; 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 and the Issuer, 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 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 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; provided, however, in the case of ECUs,
"Market Exchange Rate" means the rate of exchange determined by the
Commission of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities (such
publication or any successor publication, the "Journal"). If such
Market Exchange Rate is not available for any reason with respect to
such Specified Currency, the Trustee shall use, in its sole discretion
and without liability on its part, such quotation of the Federal
Reserve Bank of New York or, in the case of ECUs, the rate of exchange
as published in the Journal, as of the most recent available date, or
quotations or, in the case of ECUs, rates of exchange from one or more
major banks in The City of New York or in the country of issue of the
Specified Currency, which for purposes of the ECUs shall be Brussels,
Belgium, or such other quotations or, in the case of ECUs, rates of
exchange as the Trustee shall deem appropriate.
<PAGE>
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 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 6.13 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
2.10.
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 Trustee and any agent of the Issuer 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
notation of ownership or other writing thereon) for the purpose of re-
ceiving 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 neither the Issuer nor the Trustee nor
any agent of the Issuer 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
<PAGE>
the Issuer 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 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 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 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 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 Holders of the per-
centage 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
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 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;
<PAGE>
(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 than 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 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 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 its 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
<PAGE>
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 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 Security-
holders. 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
<PAGE>
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.
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
<PAGE>
SECTION 7.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, 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 corporation to the
Issuer, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations
of the Issuer pursuant to Article Eight;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Issuer
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 express-
ly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Issuer;
(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 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 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 2.5; or
(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.
<PAGE>
Upon the request of the Issuer, accompanied by a copy of a
Resolution certified by the secretary or an assistant secretary of the
Issuer authorizing the execution of any such supplemental indenture,
the Trustee shall join with the Issuer 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 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, 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 and
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, 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.
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, accompanied by a copy of a
Resolution certified by the secretary or an assistant secretary of the
Issuer authorizing the execution of any such supplemental indenture,
<PAGE>
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 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.
Promptly after the execution by the Issuer 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 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 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 May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Issuer with or into any
<PAGE>
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 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.
SECTION 8.2 Successor Corporation to Be Substituted. 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 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, such successor entity
shall succeed to and be substituted for the Issuer, with the same
effect as if it had been named herein as the party of the first part.
Such successor entity thereupon may cause to be signed, and may issue
either in its own name or in the name of Newmont Gold Company 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.
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 as may be
appropriate.
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.
<PAGE>
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture. If at
any time (a) the Issuer 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 2.11 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 2.11 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 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 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 2.11 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 shall also pay or cause to be paid all
other sums payable hereunder by the Issuer 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 and (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 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 such series for the payment or
redemption of which such moneys have been deposited with the Trustee,
<PAGE>
of all sums due and to become due thereon for principal and interest,
if any.
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, be repaid to it 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 and unless
otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law, be repaid to the Issuer 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. The Issuer 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
exercise of its option to utilize the provisions of this Section 9.6
and upon compliance with Section 9.8, the Issuer shall be deemed to
have been discharged from its obligations with respect to the
Outstanding Securities of such series 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 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 Issuer's obligations with respect
to such Securities under Sections 2.10, 2.11, 2.13, 3.2 and 3.3, (C)
the rights, powers, trusts, duties, and immunities of the Trustee under
Sections 2.11, 2.12, 2.l3, 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 and (D) this Article Nine.
Subject to compliance with this Article Nine, the 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.
<PAGE>
SECTION 9.7 Covenant Defeasance. Upon the Issuer's exercise
of its option to utilize the provisions of to this Section 9.7 and upon
compliance with Section 9.8, the Issuer shall be released from its
obligations under Sections 3.4 and 3.5 and Section 4.l(d) 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
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 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 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. 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.
<PAGE>
(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
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
shall have delivered to the Trustee an Opinion of Counsel stating
that (x) the Issuer 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
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 shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, 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.
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.
<PAGE>
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 not-
withstanding, the Trustee shall deliver or pay to the Issuer from time
to time upon the Issuer'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 2.5 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 desig-
nated for redemption as a whole or in part shall not affect the valid-
ity 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, 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.
<PAGE>
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 prin-
cipal 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 2.5, 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, 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
<PAGE>
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 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 (b) an entity specifically identified in such written state-
ment directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer.
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 afore-
said) by the Issuer and delivered to the Trustee for cancellation
pursuant to Section 2.12, (b) receive credit for optional sinking fund
payments (not previously so credited) made pursuant to this Section, or
(c) receive credit for Securities of such series (not previously so
credited) redeemed by the Issuer through any optional redemption pro-
vision 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
<PAGE>
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 2.12 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 $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
2.5), 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 $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 2.5), or less and the Issuer
makes no such request then it shall be carried over until a sum in
excess of $100,000, or the equivalent thereof in the relevant currency
or unit or composite currency, is available.
<PAGE>
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 Se-
curities 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 or an entity actually
known by the Trustee to be directly or indirectly controlling or con-
trolled by or under direct or indirect common control with the Issuer,
as shown by the Register, and not known to the Trustee to have been
pledged or hypothecated by the Issuer 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 or an entity directly or
indirectly controlling or controlled by or under direct or indirect
common control with the Issuer, 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 pro-
vided 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 segre-
gated), 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 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,
<PAGE>
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.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 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
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 of any successor, either directly or through the Issuer
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 11.2 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 11.3 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and agreements in
this Indenture contained by the Issuer shall bind its successors and
assigns, whether or not so expressed.
SECTION 11.4 Notices and Demands on Issuer, 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 Gold Company, 1700 Lincoln Street,
Denver, Colorado 80203, Attention: Treasurer. Any notice, direction,
request or demand by the Issuer or any Securityholder to or upon the
<PAGE>
Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made in writing 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 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 and 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 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by
the Issuer to the Trustee to take any action under any of the
provisions of this Indenture, the Issuer 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 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
<PAGE>
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, upon
the certificate, statement or opinion of or representations by an offi-
cer or officers of the Issuer, 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 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, 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 11.6 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
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.
SECTION 11.7 Payments Due on Saturdays, Sundays and Legal
Holidays. Except as may be provided pursuant to Section 2.5 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 11.8 NEW YORK LAW TO GOVERN. THIS INDENTURE AND
EACH SECURITY SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE
STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SUCH STATE, EXCEPT AS MAY OTHERWISE BE
REQUIRED BY MANDATORY PROVISIONS OF LAW.
SECTION 11.9 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 11.10 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 11.11 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,
<PAGE>
the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to
be hereunto affixed and attested, all as of , 1994.
NEWMONT GOLD COMPANY
By
Name:
Title:
[CORPORATE SEAL]
Attest:
By
Name:
Title:
THE BANK OF NEW YORK
as Trustee
By
Name:
Title:
[CORPORATE SEAL]
Attest:
By
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of , 1994, before me personally came
, to me personally known, who, being by me duly sworn, did
depose and say that he resides at ;
that he is a of The Bank of New York one of the
corporations described in and which executed the above instrument; that
he knows the corporate seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
[NOTARIAL SEAL]
<PAGE>
Notary Public
STATE OF COLORADO )
) ss.:
COUNTY OF )
On this day of , 1994, before me personally came
, to me personally known, who, being by me duly sworn, did
depose and say that he resides at
; that he is
of Newmont Gold Company, one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority
of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
[NOTARIAL SEAL]
Notary Public
[FORM OF FLOATING RATE NOTE]
Floating Rate Note
REGISTERED REGISTERED
No. FLR [PRINCIPAL AMOUNT]
*CUSIP:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New
York, New York) to the issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered
in the name of Cede & Co. or such other name as requested by an
authorized representative of The Depository Trust Company and any
payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.*
* Applies only if this Note is a Global Security.
NEWMONT GOLD COMPANY
MEDIUM-TERM NOTE, SERIES A
(Floating Rate)
<TABLE>
ORIGINAL INITIAL SPREAD (PLUS OR APPLICABILITY
ISSUE DATE: INTEREST MINUS): OF REDEMPTION
<PAGE>
RATE: PROVISIONS:
<S> <C> <C> <C>
MATURITY ALTERNATE RATE INITIAL
DATE: EVENT SPREAD: REDEMPTION
DATE:
MAXIMUM SPREAD INITIAL
INTEREST MULTIPLIER: REDEMPTION
RATE: PERCENTAGE:
INTEREST APPLICABILITY
PAYMENT OF ANNUAL
PERIOD: REDEMPTION
PERCENTAGE
REDUCTION:
INTEREST If yes, state
PAYMENT Annual Percentage
DATE(S): Reduction:
BASE RATE: MINIMUM INTEREST RESET
INTEREST PERIOD:
RATE:
INDEX INTEREST
MATURITY: RESET DATES:
</TABLE>
Newmont Gold Company, a Delaware corporation (together with
its successors and assigns, the "Company"), for value received, hereby
promises to pay to , or registered
assignees, the principal sum of , on
the Maturity Date specified above (except to the extent redeemed or
repaid prior to the Maturity Date) and to pay interest thereon to the
same, from the Original Issue Date specified above or from the most
recent date to which interest has been paid or duly provided for at a
rate per annum equal to the Initial Interest Rate specified above until
the first Interest Reset Date next succeeding the Original Issue Date
specified above and thereafter at a rate per annum determined in
accordance with the provisions specified on the reverse hereof until
the principal hereof is paid or duly made available for payment (except
as provided below). The Company will pay interest in arrears monthly,
quarterly, semiannually or annually as specified above as the Interest
Payment Period on each Interest Payment Date (as specified above),
commencing on the Interest Payment Date next succeeding the Original
Issue Date specified above, and on the Maturity Date (or any redemption
date); provided, however, that if the Original Issue Date occurs
between a date fifteen days prior to an Interest Payment Date (whether
or not a Business Day) (the "Regular Record Date") and the Interest
Payment Date to which such Regular Record Date relates, interest
payments will commence on the second Interest Payment Date succeeding
the Original Issue Date to the registered Holder of this Note on the
Regular Record Date with respect to such second Interest Payment Date;
and provided further, that if an Interest Payment Date or the Maturity
Date or redemption date would fall on a day that is not a Business Day
(this and certain other capitalized terms used herein are defined on
the reverse of this Note), such Interest Payment Date, Maturity Date or
redemption date shall be the next succeeding day that is a Business Day
and interest shall accrue to, but not including, such next succeeding
Business Day, except that if the Base Rate specified above is LIBOR and
such next succeeding Business Day falls in the next calendar month, the
<PAGE>
Interest Payment Date, Maturity Date or redemption date shall be the
Business Day immediately preceding such Interest Payment Date.
Payment of the principal of this Note, any premium and the
interest due at the Maturity Date (or any redemption date) will be made
only upon presentation and surrender of this Note at the office or
agency of such paying agent as the Company may determine maintained for
that purpose in the Borough of Manhattan, The City of New York (a
"Paying Agent"), or at the office or agency of such other Paying Agent
as the Company may determine.
Interest on this Note will accrue as detailed on the reverse
hereof. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date, will be paid to the person in whose
name this Note is registered at the close of business on the Regular
Record Date preceding such Interest Payment Date; provided, however,
that (i) if the Company fails to pay such interest on such Interest
Payment Date, such defaulted interest will be paid to the person in
whose name this Note is registered at the close of business on a record
date to be established for the payment of such defaulted interest and
(ii) interest payable on the Maturity Date (or any redemption date)
will be payable to the person to whom the principal hereof shall be
payable.
Any payment of the principal of, premium, if any, and
interest on this Note will be made in U.S. dollars only, or such coin
or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. Payment of
principal and premium, if any, and interest at maturity or upon
redemption or repayment will be made either by check or, when the
Depositary acts as holder, at the option of the Depositary, by wire
transfer of immediately available funds to an account maintained by the
payee of this Note if appropriate wire transfer instructions in writing
have been received by the Company or its agent not later than the
Regular Record Date applicable to such Interest Payment Date. Payment
of interest, other than interest due at maturity or upon redemption or
repayment, may be made by check mailed to the address of the person
entitled thereto as it appears on the Register for the Notes at the
close of business on the Regular Record Date next preceding the
relevant Interest Payment Date. Notwithstanding anything to the
foregoing in this paragraph, a Holder of $10,000,000 or more in
aggregate principal amount of Notes having identical terms and
provisions shall be entitled to receive payments of interest, other
than interest due at maturity or upon redemption, if any, by wire
transfer of immediately available funds to an account maintained by the
Holder of this Note in the United States, if appropriate wire transfer
instructions have been received by the Paying Agent not later than the
Regular Record Date applicable to such Interest Payment Date.
Reference is hereby made to the further provisions of this
Note 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 Note shall not be entitled to any benefit under the
Indenture, as defined on the reverse hereof, or be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be
duly executed under its corporate seal.
NEWMONT GOLD COMPANY
<PAGE>
[SEAL] By:
Title:
Attest:
CERTIFICATE OF AUTHENTICATION
DATED:
This is one of the Securities of
the series designated herein and
referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
Authorized Signatory
[FORM OF REVERSE OF NOTE]
This Note is one of a duly authorized issue of Medium-Term
Notes, Series A, having maturities from [nine months to 30 years] from
the date of issue (herein called the "Notes"), of the Company. This
Note and all other Medium-Term Notes, Series A, constitute a series of
securities of the Company (the "Securities") issued and to be issued
under an indenture dated as of , 1994 (the "Indenture") between
the Company and The Bank of New York, to which Indenture and all
indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and
immunities of the Company, the Trustee and Holders of the Notes and the
terms upon which the Notes are, and are to be, authenticated and
delivered. The Bank of New York has been appointed calculation agent
(the "Calculation Agent" which term includes any successor calculation
agent appointed by the Company) with respect to the Notes and The Bank
of New York, at its principal corporate trust office in The City of New
York, initially has been appointed paying agent (the "Paying Agent")
with respect to the Notes. The terms of individual Notes may vary with
respect to interest rates, interest rate formulas, issue dates,
maturity dates, or otherwise, all as provided in the Indenture. To the
extent not inconsistent herewith, the terms of the Indenture are hereby
incorporated by reference herein.
This Note will not be subject to any sinking fund or subject
to repayment at the option of the Holder prior to maturity and, unless
otherwise provided on the face hereof in accordance with the provisions
of the following paragraph, will not be redeemable prior to maturity.
Unless otherwise indicated on the face of this Note, this
Note may not be redeemed prior to the Maturity Date. If the face of
this Note indicates that this Note is subject to Redemption Provisions,
then this Note may be redeemed in whole or in part at the option of the
Company on or after the Initial Redemption Date specified on the face
hereof on the terms set forth on the face hereof, together with
interest accrued and unpaid hereon to the date of redemption (except as
otherwise provided in this Note). If this Note is subject to "Annual
Redemption Percentage Reduction", the Initial Redemption Percentage
indicated on the face hereof will be reduced on each anniversary of the
Initial Redemption Date specified above by the Annual Percentage
<PAGE>
Reduction specified on the face hereof until the redemption price of
this Note is 100% of the principal amount hereof. Notice of redemption
shall be mailed to the registered Holders of the Notes designated for
redemption at their addresses as the same shall appear on the Note
Register not less than 30 days nor more than 60 days prior to the date
of redemption, subject to all the conditions and provisions of the
Indenture. In the event of redemption of this Note in part only, a new
Note or Notes for the amount of the unredeemed portion hereof shall be
issued in the name of the Holder hereof upon the presentation and
cancellation hereof.
If an Event of Default with respect to Securities of any
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 such series then
Outstanding may declare the principal of the Securities of such series
and accrued interest thereon, if any, to be due and payable in the
manner and with the effect provided in the Indenture.
This Note will bear interest at the rate determined in
accordance with the applicable provisions below by reference to the
Base Rate shown on the face hereof based on the Index Maturity, if any,
shown on the face hereof (i) plus or minus the Spread, if any, or (ii)
multiplied by the Spread Multiplier, if any specified on the face
hereof. Commencing with the first Interest Reset Date next succeeding
the Original Issue Date specified on the face hereof, the rate at which
interest on this Note is payable shall be reset as of each Interest
Reset Date. The Interest Reset Dates will be as specified on the face
hereof; provided, however, that (i) the interest rate in effect for the
period from the Original Issue Date to the first Interest Reset Date
next succeeding the Original Issue Date specified on the face hereof
will be the Initial Interest Rate and (ii) the interest rate in effect
hereon for the fifteen calendar days immediately prior to the Maturity
Date hereof (or, with respect to any principal amount to be redeemed,
any redemption date) shall be that in effect on the fifteenth calendar
day preceding the Maturity Date hereof or such date of redemption, as
the case may be. If any Interest Reset Date would otherwise be a day
that is not a Business Day, such Interest Reset Date shall be postponed
to the next succeeding day that is a Business Day, except that if the
Base Rate specified on the face hereof is LIBOR and such Business Day
is in the next succeeding calendar month, such Interest Reset Date
shall be the next preceding Business Day.
The Interest Determination Date pertaining to an Interest
Reset Date for Notes as to which the Base Rate is the CD Rate,
Commercial Paper Rate, Federal Funds Rate and Prime Rate will be the
second Business Day next preceding such Interest Reset Date. The
Interest Determination Date pertaining to an Interest Reset Date for
Notes as to which the Base Rate is LIBOR will be the second London
Banking Day next preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date for Notes as to
which the Base Rate is the Treasury Rate will be the day of the week in
which such Interest Reset Date falls on which Treasury bills are
auctioned; provided, however, that if a result of a legal holiday an
auction is held on the Friday of the week preceding such Interest Reset
Date, the related Interest Determination Date shall be such preceding
Friday; and provided, further, that if an auction shall fall on any
Interest Reset Date, then the Interest Reset Date shall instead be the
first Business Day following the date of such auction.
The "Calculation Date" pertaining to any Interest
Determination Date will be the earlier of (a) the tenth calendar day
after such Interest Determination Date or (b) the next succeeding
<PAGE>
Regular Record Date after such Interest Determination Date; provided,
that if the Calculation Date would thereby be a day which is not a
Business Day, the Calculation Date shall be postponed to the next
succeeding Business Day.
Determination of CD Rate. If the Base Rate specified on the
face hereof is the CD Rate, the CD Rate with respect to this Note shall
be determined by the Calculation Agent on each Interest Determination
Date and shall be the rate on such date for negotiable certificates of
deposit having the Index Maturity specified on the face hereof as
published by the Board of governors of the Federal Reserve System in
"Statistical Release H.15(519), Selected Interest Rates," or any
successor publication of the Board of Governors of the Federal Reserve
System ("H.15(519)"), under the heading "CDs (Secondary Market)," or,
if not published by 9:00 a.m., New York City time, on the Calculation
Date pertaining to such Interest Determination Date, the CD Rate will
be the rate on such Interest Determination Date for negotiable
certificates of deposit of the Index Maturity specified on the face
hereof as published by the Federal Reserve Bank of New York in its
daily statistical release "Composite 3:30 p.m. Quotations for U.S.
Government Securities" (the "Composite Quotations") under the heading
"Certificates of Deposit." If such rate is not yet published in the
Composite Quotations by 3:00 p.m., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the CD
Rate on such Interest Determination Date will be calculated by the
Calculation Agent and will be the arithmetic mean of the secondary
market offered rates as of 10:00 a.m., New York City time, on such
Interest Determination Date, for certificates of deposit in the
denomination of $5,000,000 with a remaining maturity closest to the
Index Maturity specified on the face hereof of three leading nonbank
dealers in negotiable U.S. dollar certificates of deposit in The City
of New York selected by the Calculation Agent for negotiable
certificates of deposit of major United States money center banks of
the highest credit standing in the market for negotiable certificates
of deposit; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting offered rates as set
forth above, the rate of interest in effect for the applicable period
will be the same as the CD Rate for the immediately preceding Interest
Reset Date (or, if there was no such Interest Reset Date, the rate of
interest payable hereon shall be the Initial Interest Rate).
Determination of Commercial Paper Rate. If the Base Rate
specified on the face hereof is the Commercial Paper Rate, the
Commercial Paper Rate with respect to this Note shall be determined by
the Calculation Agent on each interest Determination Date and shall be
the Money Market Yield (as defined below) of the rate on that date for
commercial paper having the Index Maturity specified on the face
hereof, as such rate shall be published in H.15(519) under the heading
"Commercial Paper." In the event that such rate is not published by
9:00 a.m., New York City time, on the Calculation Date, then the
Commercial Paper Rate shall be the Money Market Yield of the rate on
such Interest Determination Date for commercial paper of the Index
Maturity specified on the face hereof as published by the Composite
Quotations under the heading "Commercial Paper." If by 3:00 p.m., New
York City time, on such Calculation Date such rate is not yet available
in the Composite Quotations, then the Commercial Paper Rate will be
calculated by the Calculation Agent and shall be the Money Market Yield
of the arithmetic mean of the offered rates as of 11:00 a.m., New York
City time, on such Interest Determination Date of three leading dealers
in commercial paper in The City of New York selected by the Calculation
Agent for commercial paper of the Index Maturity specified on the face
hereof, placed for an industrial issuer whose bond rating is "AA," or
the equivalent, from a nationally recognized rating agency; provided,
<PAGE>
however, that if the dealers selected as aforesaid by the Calculation
Agent are not quoting offered rates as mentioned in this sentence, the
rate of interest in effect for the applicable period will be the same
as the Commercial Paper Rate for the immediately preceding Interest
Reset Date (or, if there was no such Interest Reset Date, the rate of
interest payable hereon shall be the Initial Interest Rate).
"Money Market Yield" shall be a yield calculated in
accordance with the following formula:
Money Market Yield = D x 360
------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper
quoted on a bank discount basis and expressed as a decimal, and "M"
refers to the actual number of days in the specified Index Maturity.
Determination of Federal Funds Rate. If the Base Rate
specified on the face hereof is the Federal Funds Rate, the Federal
Funds Rate with respect to this Note shall be determined by the
Calculation Agent on each Interest Determination Date and shall be the
rate on such date for Federal Funds as published in H.15(519) under the
heading "Federal Funds (Effective)" or, if not so published by 9:00
a.m., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, the Federal Funds Rate will be the rate on
such Interest Determination Date as published in the Composite
Quotations under the heading "Federal Funds/Effective Rate." If such
rate is not yet published in the Composite Quotations by 3:00 p.m., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, the Federal Funds Rate for such Interest
Determination Date will be calculated by the Calculation Agent and will
be the arithmetic mean of the rates for the last transaction in
overnight Federal funds as of 11:00 a.m., New York City time, on such
Interest Determination Date arranged by three leading brokers of
Federal funds transactions in The City of New York selected by the
Calculation Agent; provided, however, that if the brokers selected as
aforesaid by the Calculation Agent are not quoting such rates as set
forth above, the rate of interest in effect for the applicable period
will be the same as the Federal Funds Rate for the immediately
preceding Interest Reset Date (or, if there was no such Interest Reset
Date, the rate of interest payable hereon shall be the Initial Interest
Rate).
Determination of LIBOR. If the Base Rate specified on the
face hereof is LIBOR, LIBOR with respect to this Note shall be
determined by the Calculation Agent on each Interest Determination Date
as follows:
(i) As of the Interest Determination Date, the Calculation
Agent will determine the arithmetic mean of the offered rates for
deposits in U.S. dollars for the period of the Index Maturity
specified on the face hereof which appear on the Reuters Screen
LIBO Page at approximately 11:00 a.m., London time, on such
Interest Determination Date. "Reuters Screen LIBO Page" means the
display designated as page "LIBO" on the Reuters Monitor Money
Rate Service (or such other page as may replace
<PAGE>
the LIBO Page on the service for the purpose of displaying London
interbank offered rates of major banks).
(ii) If fewer than two offered rates appear on the Reuters
Screen LIBO Page, the Calculation Agent will request the principal
London offices of each of four major banks in the London interbank
market, as selected by the Calculation Agent, to provide the
Calculation Agent with its offered quotations for deposits in U.S.
dollars for the period of the Index Maturity specified on the face
hereof to prime banks in the London interbank market at
approximately 11:00 a.m., London time, on such Interest
Determination Date and in a principal amount equal to an amount of
not less than U.S. $1,000,000 that is representative of a single
transaction in such market at such time. If at least two such
quotations are provided, LIBOR in respect of such Interest
Determination Date will be the arithmetic mean of such quotations.
If fewer than two quotations are provided, LIBOR in respect of
such Interest Determination Date will be the arithmetic mean of
rates quoted by three major banks in The City of New York selected
by the Calculation Agent (after consultation with the Company) at
approximately 11:00 a.m., New York City time, on such Interest
Determination Date for loans in U.S. dollars to leading European
banks, for the period of the Index Maturity and in a principal
amount of not less than U.S. $1,000,000 that is representative of
a single transaction in such market at such time; provided,
however, that if fewer than three banks selected as aforesaid by
the Calculation Agent are quoting rates as mentioned in this
sentence, LIBOR for such Interest Reset Date will be the same as
LIBOR for the immediately preceding Interest Reset Date (or, if
there was no such Interest Reset Date, the rate of interest
payable hereon shall be the Initial Interest Rate).
Determination of Prime Rate. If the Base Rate specified on
the face hereof is the Prime Rate, the Prime Rate with respect to this
Note shall be determined by the Calculation Agent on each Interest
Determination Date and shall be the rate set forth in H.15(519) for
such date opposite the caption "Bank Prime Loan." If such rate is not
yet published by 9:00 a.m., New York City time, on the Calculation
Date, the Prime Rate for such Interest Determination Date will be
calculated by the Calculation Agent and will be the arithmetic mean of
the rates of interest publicly announced by each bank named on the
display designated as page "NYMF" on the Reuters Monitor Money Rate
Service (or such other page as may replace the NYMF Page on such
service for the purpose of displaying prime rates of major New York
City banks) (the "Reuters Screen NYMF Page") as such bank's prime rate
or base lending rate as in effect for such Interest Determination Date
as quoted on the Reuters Screen NYMF Page on such Interest
Determination Date, or, if fewer than four such rates appear on the
Reuters Screen NYMF Page for such Interest Determination Date, the rate
shall be the arithmetic mean of the prime rates quoted on the basis of
the actual number of days in the year divided by 360 as of the close of
business on such Interest Determination Date by at least two of the
three major money center banks in The City of New York selected by the
Calculation Agent from which quotations are requested. If fewer than
two quotations are provided, the Prime Rate in respect of such Interest
Determination Date shall be calculated by the Calculation Agent and
shall be determined as the arithmetic mean on the basis of the prime
rates quoted in The City of New York on the basis of the actual number
of days in the year divided by 360 as of the close of business on such
Interest Determination Date by one or two, as the case may be,
substitute banks or trust companies organized and doing business under
the laws of the United States, or any State thereof, in each case
having total equity capital of at least U.S. $500 million and being
<PAGE>
subject to supervision or examination by Federal or State authority,
selected by the Calculation Agent to quote such rate or rates.
If in any month or two consecutive months the Prime Rate is
not published in H.15(519) and the banks or trust companies selected as
aforesaid are not quoting such rates as mentioned in the preceding
paragraph, the "Prime Rate" for such Interest Reset Date will be the
same as the Prime Rate for the immediately preceding Interest Reset
Date (or, if there was no such Interest Reset Date, the rate of
interest payable hereon shall be the Initial Interest Rate). If this
failure continues for three or more consecutive months, the Prime Rate
for each succeeding Interest Determination Date until the maturity or
redemption of this Note or, if earlier, until this failure ceases,
shall be LIBOR determined as if the Base Rate specified on the face
hereof were LIBOR with an Index Maturity of 90 days, and the Spread, if
any, shall be the number of basis points specified on the face hereof
as the "Alternate Rate Event Spread."
Determination of Treasury Rate. If the Base Rate specified
on the face hereof is the Treasury Rate, the Treasury Rate with respect
to this Note shall be determined by the Calculation Agent on each
Interest Determination Date and shall be the rate for the auction held
on such date of direct obligations of the United States ("Treasury
Bills") having the Index Maturity specified on the face hereof, as
published in H.15(519) under the heading "Treasury Bills -- auction
average (investment)" or, if not so published by 9:00 a.m., New York
City time, on the Calculation Date pertaining to such Interest
Determination Date, the auction average rate on such Interest
Determination Date (expressed as a bond equivalent, on the basis of a
year of 365 or 366 days, as applicable, and applied on a daily basis)
as otherwise announced by the United States Department of the Treasury.
In the event that the results of the auction of Treasury Bills having
the Index Maturity specified on the face hereof are not published or
reported as provided above by 3:00 p.m., New York City time, on such
Calculation Date or if no such auction is held on such Interest
Determination Date, then the Treasury Rate shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable,
and applied on a daily basis) of the arithmetic mean of the secondary
market bid rates, as of approximately 3:30 p.m., New York City time, on
such Interest Determination Date, of three leading primary United
States government securities dealers selected by the Calculation Agent
for the issue of Treasury Bills with a remaining maturity closest to
the Index Maturity specified on the face hereof; provided, however,
that if the dealers selected as aforesaid by the Calculation Agent are
not quoting bid rates as mentioned in this sentence, the Treasury Rate
for such Interest Reset Date will be the same as the Treasury Rate for
the immediately preceding Interest Reset Date (or, if there was no such
Interest Reset Date, the rate of interest payable hereon shall be the
Initial Interest Rate).
Notwithstanding the foregoing, the interest rate hereon shall
not be greater than the Maximum Interest Rate, if any, or less than the
Minimum Interest Rate, if any, specified on the face hereof. The
Calculation Agent shall calculate the interest rate hereon in
accordance with the foregoing on or before each Calculation Date. The
interest rate on this Note will in no event be higher than the maximum
rate permitted by New York law, as the same may be modified by United
States Federal law of general application.
At the request of the Holder hereof, the Trustee will provide
to the Holder hereof the interest rate hereon then in effect and, if
<PAGE>
applicable, the interest rate which will become effective as of the
next Interest Reset Date.
Interest payments on this Note will include interest accrued
from, and including, the next preceding Interest Payment Date in
respect of which interest has been paid (or from, and including, the
Original Issue Date if no interest has been paid with respect to this
Note) to, but excluding, such Interest Payment Date. However, if the
Interest Reset Dates with respect to this Note are daily or weekly,
interest payable on any Interest Payment Date will include interest
accrued only from, and excluding, the next preceding Regular Record
Date to which interest has been paid (or from, and including, the
Original Issue Date if no interest has been paid with respect to this
Note) to, and including, the Regular Record Date relating to such
Interest Payment Date, except that the interest payment at maturity (or
upon earlier redemption) will include interest accrued to, but
excluding, such Maturity Date (or earlier redemption date). Accrued
interest from the Original Issue Date, or from the last date to which
interest has been paid, is calculated by multiplying the face amount of
this Note by an accrued interest factor. The accrued interest factor
is computed by adding together the interest factors calculated for each
day from the Original Issue Date, or from the last day to which
interest has been paid, to the date for which accrued interest is being
calculated. The interest factor for each such day is computed by
dividing the interest rate applicable to such day by 360, if the Base
Rate as specified on the face hereof is the CD Rate, Commercial Paper
Rate, Federal Funds Rate, LIBOR or Prime Rate or by the actual number
of days in the year, if the applicable Base Rate specified on the face
hereof is the Treasury Rate. The interest rate in effect on each day
will be (a) if such day is an Interest Reset Date, the interest rate
with respect to the Interest Determination Date pertaining to such
Interest Reset Date or (b) if such day is not an Interest Reset Date,
the interest rate with respect to the Interest Determination Date
pertaining to the immediately preceding Interest Reset Date (or, if
there was no such Interest Reset Date, the interest rate shall be the
Initial Interest Rate), subject in either case to any maximum or
minimum interest rate limitation referred to above and to any
adjustment by a Spread or a Spread Multiplier referred to above. All
percentages resulting from any calculation of the rate of interest on
this Note will be rounded, if necessary, to the nearest one hundred-
thousandth of a percentage point (.0000001), with five one-millionths
of a percentage point rounded upward, and all U.S. dollar amounts used
in or resulting from such calculation on this Note will be rounded to
the nearest cent (with one-half cent being rounded upward).
The Indenture permits, with certain exceptions as therein
provided, the amendment or supplementing thereof and the modification
of the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the consent
of the Holders of 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 (including, if applicable, the
series designated Medium-Term Notes, Series A, of which this Note forms
a part) 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 Out-
standing, 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 Note (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such
<PAGE>
Holder and upon all future Holders of this Note and of any Note 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 Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of
and interest, if any, on this Note at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable
in the Register, upon due presentment of this Note for registration of
transfer at the office or agency of the Company in any place where the
principal of and interest, if any, on this Note is payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security registrar duly executed by
the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes, having terms and conditions identical
to the terms and conditions of this Note, will be issued to the
designated transferee or transferees.
This Note is issued, and any Notes issued upon transfer or
exchange hereof are issuable, only in registered form, without coupons,
in denominations of [$1,000,000] and in integral multiples of [$10,000]
in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, this Note is exchangeable for a like
aggregate principal amount of Notes in authorized denominations and
having terms and conditions identical to the terms and conditions of
this Note.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Note is registered as
the owner hereof for all purposes, whether or not this Note be overdue
and notwithstanding any notation of ownership or other writing thereon,
and neither the Company, the Trustee nor 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 Note.
No recourse for the payment of the principal of or interest,
if any, on this Note, or for any claim based hereon or otherwise in
respect hereof, and no recourse under or upon any obligation, covenant
or agreement of the Company in the Indenture or any indenture
supplemental thereto or in any Note, 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 Company or of any successor entity, either directly
or through the Company or any successor corporation, 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.
<PAGE>
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
As used herein:
(a) the term "Business Day" means 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 and with respect to LIBOR Notes in the City of London;
(b) the term "London Banking Day" means any day on which
dealings in deposits in U.S. dollars are transacted in the London
interbank market;
(c) the term "Interest Payment Date" with respect to any
Note shall be a date on which, under the terms of such Note, regularly
scheduled interest shall be payable; and
(d) all other terms used in this Note which are defined in
the Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian..................
(Cust) (Minor)
Under Uniform Gifts to Minors Act.....................
(State)
Additional abbreviations may also be used though not in the above
list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing such person attorney to transfer
such Note on the books of the Company, with full power of
substitution in the premises.
<PAGE>
Dated:
NOTICE: The signature to this assignment must correspond with the
name as written upon the face of the within Note in every
particular without alteration or enlargement or any change
whatsoever.
Signature guarantee:
[Form of Fixed Rate Note]
REGISTERED REGISTERED
No. FXR $
*CUSIP:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New
York, New York) to the issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered
in the name of Cede & Co. or such other name as requested by an
authorized representative of The Depository Trust Company and any
payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.*
* Applies only if this Note is a Global Security.
NEWMONT GOLD COMPANY
MEDIUM-TERM NOTE, SERIES A
(Fixed Rate)
<TABLE>
APPLICABILITY OF
ORIGINAL ISSUE INITIAL REDEMPTION
DATE: REDEMPTION DATE: PROVISIONS:
<S> <C> <C>
MATURITY DATE: INITIAL
REDEMPTION
PERCENTAGE:
INTEREST RATE: APPLICABILITY OF
ANNUAL REDEMPTION
PERCENTAGE
REDUCTION:
INTEREST PAYMENT If yes, state
PERIOD: Annual Percentage
Reduction:
INTEREST PAYMENT
DATE(S):
</TABLE>
<PAGE>
Newmont Gold Company, a Delaware corporation (together with
its successors and assigns, the "Company"), for value received, hereby
promises to pay to , or
registered assignees, the principal sum of
, on the Maturity Date specified above (except to the
extent redeemed or repaid prior to the Maturity Date) and to pay
interest thereon to the same, from the Original Issue Date specified
above or from the most recent date to which interest has been paid or
duly provided for at the Interest Rate per annum specified above until
the principal hereof is paid or duly made available for payment (except
as provided below). The Company will pay interest in arrears monthly,
quarterly, semiannually or annually as specified above as the Interest
Payment Period on each Interest Payment Date (as specified above), com-
mencing on the Interest Payment Date next succeeding the Original Issue
Date specified above, and on the Maturity Date (or any redemption
date); provided, however, that if the Original Issue Date occurs
between a date fifteen days prior to an Interest Payment Date (whether
or not a Business Day) (the "Regular Record Date") and the Interest
Payment Date to which such Regular Record Date relates, interest
payments will commence on the second Interest Payment Date succeeding
the Original Issue Date to the registered Holder of this Note on the
Regular Record Date with respect to such second Interest Payment Date;
and provided further, that if an Interest Payment Date or the Maturity
Date or redemption date would fall on a day that is not a Business Day
(this and certain other capitalized terms used herein are defined on
the reverse of this Note), such Interest Payment Date, Maturity Date or
redemption date shall be the next succeeding day that is a Business Day
and no interest shall accrue to such next succeeding Business Day.
Interest on this Note will accrue from the most recent
Interest Payment Date to which interest has been paid or duly provided
for or if no interest has been paid or duly provided for, from the
Original Issue Date, until the principal hereof has been paid or duly
made available for payment (except as provided below). The interest so
payable, and punctually paid or duly provided for, on any Interest
Payment Date, will be paid to the person in whose name this Note is
registered at the close of business on the Regular Record Date
preceding such Interest Payment Date; provided, however, that (i) if
the Company fails to pay such interest on such Interest Payment Date,
such defaulted interest will be paid to the person in whose name this
Note is registered at the close of business on a record date to be
established for the payment of such defaulted interest and (ii)
interest payable on the Maturity Date (or any redemption date) will be
payable to the person to whom the principal hereof shall be payable.
Any payment of the principal of, premium, if any, and
interest on this Note will be made in U.S. dollars only, or such coin
or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. Payment of
the principal of this Note, any premium and the interest due at the
Maturity Date (or any redemption date) will be made only upon
presentation and surrender of this Note at the office or agency of such
paying agent as the Company may determine maintained for that purpose
in the Borough of Manhattan, The City of New York (a "Paying Agent"),
or at the office or agency of such other Paying Agent as the Company
may determine. Payment of interest, other than interest due at
maturity or upon redemption or repayment, may be made by check mailed
to the address of the person entitled thereto as it appears on the
Register for the Notes at the close of business on the Regular Record
Date next preceding the relevant Interest Payment Date.
Notwithstanding anything to the foregoing in this paragraph, a Holder
of $10,000,000 or more in aggregate principal amount of Notes having
identical terms and provisions shall be entitled to receive payments of
<PAGE>
interest, other than interest due at maturity or upon redemption, if
any, by wire transfer of immediately available funds to an account
maintained by the Holder of this Note in the United States, if
appropriate wire transfer instructions have been received by the Paying
Agent not later than the Regular Record Date applicable to such
Interest Payment Date.
Reference is hereby made to the further provisions of this
Note 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 Note shall not be entitled to any benefit under the
Indenture, as defined on the reverse hereof, or be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be
duly executed under its corporate seal.
NEWMONT GOLD COMPANY
[SEAL] By:
Title:
Attest:
CERTIFICATE OF AUTHENTICATION
DATED:
This is one of the Securities of
the series designated herein and
referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
Authorized Signatory
NEWMONT GOLD COMPANY
Medium-Term Notes, Series A
(Fixed Rate)
This Note is one of a duly authorized issue of Medium-Term
Notes, Series A, having maturities from nine months to 30 years from
the date of issue (herein called the "Notes"), of the Company. This
Note and all other Medium-Term Notes, Series A, constitute a series of
securities of the Company (the "Securities") issued and to be issued
under an indenture dated as of , 1994 (the "Indenture") between
the Company and The Bank of New York, to which Indenture and all
indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and
immunities of the Company, the Trustee and Holders of the Notes and the
terms upon which the Notes are, and are to be, authenticated and
delivered. This Note is one of the series designated on the face
<PAGE>
hereof limited in aggregate principal amount to $150,000,000. The Bank
of New York, at its principal corporate trust office in The City of New
York, initially has been appointed paying agent (the "Paying Agent")
with respect to the Notes. The terms of individual Notes may vary with
respect to interest rates, issue dates, maturity dates, or otherwise,
all as provided in the Indenture. To the extent not inconsistent
herewith, the terms of the Indenture are hereby incorporated by
reference herein.
This Note will not be subject to any sinking fund or subject
to repayment at the option of the Holder prior to maturity and, unless
otherwise provided on the face hereof in accordance with the provisions
of the following paragraph, will not be redeemable prior to maturity.
Unless otherwise indicated on the face of this Note, this
Note may not be redeemed prior to the Maturity Date. If the face of
this Note indicates that this Note is subject to Redemption Provisions,
then this Note may be redeemed in whole or in part at the option of the
Company on or after the Initial Redemption Date specified on the face
hereof on the terms set forth on the face hereof, together with
interest accrued and unpaid hereon to the date of redemption (except as
otherwise provided in this Note). If this Note is subject to "Annual
Redemption Percentage Reduction", the Initial Redemption Percentage
indicated on the face hereof will be reduced on each anniversary of the
Initial Redemption Date specified above by the Annual Percentage
Reduction specified on the face hereof until the redemption price of
this Note is 100% of the principal amount hereof. Notice of redemption
shall be mailed to the registered Holders of the Notes designated for
redemption at their addresses as the same shall appear on the Note
Register not less than 30 days nor more than 60 days prior to the date
of redemption, subject to all the conditions and provisions of the
Indenture. In the event of redemption of this Note in part only, a new
Note or Notes for the amount of the unredeemed portion hereof shall be
issued in the name of the Holder hereof upon the presentation and
cancellation hereof.
If an Event of Default with respect to Securities of any
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 such series then
Outstanding may declare the principal of the Securities of such series
and accrued interest thereon, if any, to be due and payable in the
manner and with the effect provided in the Indenture.
Interest payments on this Note will include interest accrued
to, but excluding, the Interest Payment Dates or the Maturity Date (or
earlier redemption date), as the case may be. Interest payments for
this Note will be computed and paid on the basis of a 360-day year of
twelve 30-day months.
In the case where an Interest Payment Date or the Maturity
Date (or any redemption date) does not fall on a Business Day, payment
of interest, premium, if any, or principal otherwise payable on such
date 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 Interest Payment Date or on the Maturity Date (or any redemption
date), and no interest shall accrue for the period from and after the
Interest Payment Date or the Maturity Date (or any redemption date) to
such next succeeding Business Day.
The Indenture permits, with certain exceptions as therein
provided, the amendment or supplementing thereof and the modification
of the rights and obligations of the Company and the rights of the
<PAGE>
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the consent
of the Holders of 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 (including, if applicable, the
series designated Medium-Term Notes, Series A, of which this Note forms
a part) 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 Out-
standing, 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 Note (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note 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 Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of
and interest, if any, on this Note at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable
in the Register, upon due presentment of this Note for registration of
transfer at the office or agency of the Company in any place where the
principal of and interest, if any, on this Note is payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security registrar duly executed by
the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes, having terms and conditions identical
to the terms and conditions of this Note, will be issued to the
designated transferee or transferees.
This Note is issued, and any Notes issued upon transfer or
exchange hereof are issuable, only in registered form, without coupons,
in denominations of $100,000 and in integral multiples of $1,000 in
excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, this Note is exchangeable for a like
aggregate principal amount of Notes in authorized denominations and
having terms and conditions identical to the terms and conditions of
this Note.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Note is registered as
the owner hereof for all purposes, whether or not this Note be overdue
and notwithstanding any notation of ownership or other writing thereon,
and neither the Company, the Trustee nor 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 Note.
<PAGE>
No recourse for the payment of the principal of or interest,
if any, on this Note, or for any claim based hereon or otherwise in
respect hereof, and no recourse under or upon any obligation, covenant
or agreement of the Company in the Indenture or any indenture
supplemental thereto or in any Note, 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 Company or of any successor entity, either directly
or through the Company or any successor corporation, 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.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
As used herein:
(a) the term "Business Day" means 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;
(b) the term "Interest Payment Date" with respect to any
Note shall be a date on which, under the terms of such Note, regularly
scheduled interest shall be payable; and
(c) all other terms used in this Note which are defined in
the Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian...............
(Cust) (Minor)
Under Uniform Gifts to Minors Act.....................
(State)
Additional abbreviations may also be used though not in the above
list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
<PAGE>
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing such person attorney to transfer
such Note on the books of the Company, with full power of
substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the
name as written upon the face of the within Note in every
particular without alteration or enlargement or any change
whatsoever.
Signature Guarantee:
MSB:KHP June 22, 1994
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 Gold Company, a Delaware corporation ("Newmont"), with the
Securities and Exchange Commission (the "Commission"), relating to up
to $150,000,000 aggregate principal amount of Newmont's debt securities
consisting of debentures, notes or other unsecured evidences of
indebtedness (the "Securities") to be issued from time to time pursuant
to the terms of an Indenture between Newmont and The Bank of New York,
as Trustee, filed as Exhibit 4.1 to the Registration Statement (the
"Indenture"), and to be sold to or through underwriters, to other
purchasers or through agents.
Based upon our examination of such documents, certificates,
records, authorizations and proceedings as we have deemed relevant, it
is our opinion that, when (i) execution of the Indenture has been duly
authorized by Newmont by appropriate corporate action, (ii) the
issuance of the Securities and the approval of final terms thereof have
been duly authorized by appropriate corporate action, (iii) the
Indenture has been duly executed and delivered by Newmont, (iv) the
Securities have been duly executed and authenticated, and (v) the
Securities have been delivered against payment therefor, the Securities
will be valid and legally binding obligations of Newmont 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
<PAGE>
general equitable principles regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law.
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 Debt 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 thereunder.
Very truly yours,
WHITE & CASE
EXHIBIT 12
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Amounts in thousands except ratios)
(Unaudited)
<TABLE>
Three Months Ended March 31,
Year Ended December 31,(1)
1994 1993 1992 1991 1990 1989
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Income before income
taxes and cumulative
effect of changes in
accounting principles $24,684 $113,234 $93,399 $122,218 $240,460 $102,359
Adjustments:
Net interest
expense (2) 165 12,393 14,555 13,021 42,373 91,784
Amortization of
capitalized interest 484 1,814 1,410 1,668 1,236 2,365
Portion of rental
expense
representative
of interest 178 800 1,088 1,572 2,017 2,308
Minority interest of
majority-owned
subsidiaries that
have fixed charges - 11,113 7,580 12,455 14,021 13,706
Undistributed income
of less than 50%
owned entities (1,460) (3,526) - - (7,460) -
$24,051 $135,828 $118,032 $150,934 $292,647 $212,522
Fixed Charges:
Net interest
expense (2) $ 165 $12,393 $14,555 $13,021 $42,373 $91,784
Capitalized interest 4,750 8,480 2,405 - - 2,269
Portion of rental
<PAGE>
expense
representative
of interest 178 800 1,088 1,572
2,017 2,308
$ 5,093 $21,673 $18,048 $14,593 $44,390 $96,361
Ratio of Earnings to
Fixed Charges 4.7 6.3 6.5 10.3 6.6 2.2
(1) The computations for the annual periods presented are for Newmont Mining Corporation ("NMC"), Newmont
Gold Company's ("NGC") parent. Computations for these periods are presented for NMC because management
believes they are more relevant than NGC's historical computations for the same periods due to the fact
that effective January 1, 1994 NGC acquired essentially all of NMC's assets and assumed essentially all
of NMC's liabilities. The computations are reflective of what they would have been for NGC had this
transaction occurred at the beginning of 1989. NGC was fully consolidated into NMC in all periods and
NGC had insignificant fixed charges in all periods except 1989, when its fixed charges represented $13.8
million of the total $96.4 million shown.
(2) Includes interest expense of majority-owned subsidiaries and amortization of debt issuance costs.
</TABLE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Form S-3 Registration Statement of
our reports dated January 25, 1994 included in Newmont Gold Company's
Form 10-K for the year ended December 31, 1993 and our report dated
March 30, 1994 included in Newmont Gold Company's Form 8-K dated April
5, 1994 and to all references to our Firm included in this Registration
Statement.
ARTHUR ANDERSEN & CO.
Denver, Colorado,
June 22, 1994.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Timothy J. Schmitt and
Graham M. Clark, Jr., and each of them, his true and lawful attorneys-
in-fact and agents, with full power of substitution and revocation, in
<PAGE>
his name and on his behalf, to do any and all acts and things and to
execute any and all instruments which they and each of them 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 up to, and including, $150 million of debt securities
of the Company including power and authority to sign his name in any
and all capacities (including his capacity as a Director and/or Officer
of the Company) 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 attorneys-in-
fact and agents, or any of them, shall lawfully do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned have subscribed these
presents as of the 16th day of March, 1994.
<TABLE>
Signature Title
<S> <C>
/s/ Rudolph I.J. Agnew Director
Rudolph I.J. Agnew
/s/ John P. Bolduc Director
John P. Bolduc
/s/ Ronald C. Cambre Chief Executive Officer and
Ronald C. Cambre Vice Chairman and Director
(Principal Executive Officer)
/s/ Joseph P. Flannery Director
Joseph P. Flannery
/s/ Thomas A. Holmes Director
Thomas A. Holmes
/s/ Gordon R. Parker Chairman and Director
Gordon R. Parker
/s/ T. Peter Philip President and Chief Operating
T. Peter Philip Officer and Director
/s/ Robin A. Plumbridge Director
Robin A. Plumbridge
/s/ Robert H. Quenon Director
Robert H. Quenon
/s/ James V. Taranik Director
<PAGE>
James V. Taranik
/s/ William I.M. Turner, Jr. Director
William I.M. Turner, Jr.
/s/ Wayne W. Murdy Senior Vice President
Wayne W. Murdy and Chief Financial Officer
(Principal Financial Officer)
/s/ Gary E. Farmar Vice President and Controller
Gary E. Farmar (Principal Accounting Officer)
</TABLE>
EXHIBIT 25
THIS CONFORMING PAPER FORMAT DOCUMENT IS BEING SUBMITTED
PURSUANT TO RULE 901(d) OF REGULATION S-T
=======================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) ( )
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
<PAGE>
NEWMONT GOLD COMPANY
(Exact name of obligor as specified in its charter)
Delaware 13-2526632
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1700 Lincoln Street
Denver, Colorado 80203
(Address of principal executive offices) (Zip code)
Debt Securities
(Title of the indenture securities)
=========================================================================
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
-------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20549
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
<PAGE>
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule
24 of the Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1
to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement
No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of
New York, 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 24th day of May, 1994.
THE BANK OF NEW YORK
By: /S/ ROBERT F. MCINTYRE
Name: ROBERT F. MCINTYRE
Title: ASSISTANT VICE PRESIDENT
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
<PAGE>
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business December 31, 1993, published in accordance
with a call made by the Federal Reserve Bank of this District pursuant to
the provisions of the Federal Reserve Act.
<TABLE>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due
from depository institu-
tions:
Noninterest-bearing bal-
ances and currency and
coin . . . . . . . . . . . . . . . . . . . . . . . . . . $ 4,393,393
Interest-bearing balances . . . . . . . . . . . . . . . 652,315
Securities . . . . . . . . . . . . . . . . . . . . . . . 3,809,834
Federal funds sold in
domestic offices of the
bank . . . . . . . . . . . . . . . . . . . . . . . . . 331,075
Loans and lease
financing receivables:
Loans and leases, net
of unearned income . . . . . . . . . . . . 23,708,678
LESS: Allowance for
loan and lease losses . . . . . . . . . . . . . . . 773,597
LESS: Allocated
transfer risk reserve . . . . . . . . . . . . . . . 28,427
Loans and leases, net
of unearned income,
allowance and reserve . . . . . . . . . . . . . . . . . 22,906,654
Assets held in trading
accounts . . . . . . . . . . . . . . . . . . . . . . . 851,615
Premises and fixed
assets (including
capitalized leases) . . . . . . . . . . . . . . . . . . 657,247
Other real estate owned . . . . . . . . . . . . . . . . . 60,806
Investments in uncon-
solidated subsidiaries
and associated companies . . . . . . . . . . . . . . . 170,378
Customers liability to
this bank on acceptances
outstanding . . . . . . . . . . . . . . . . . . . . . 885,751
Intangible assets . . . . . . . . . . . . . . . . . . . . 42,689
Other assets . . . . . . . . . . . . . . . . . . . . . . 1,326,362
Total assets . . . . . . . . . . . . . . . . . . . . . . $36,088,119
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . $19,486,153
Noninterest-bearing . . . . . . . . . . . . . . . 7,388,636
Interest-bearing . . . . . . . . . . . . . . . 12,097,517
In foreign offices, Edge
and Agreement Subsidiaries,
and IBFs . . . . . . . . . . . . . . . . . . . . . . . 8,230,444
Noninterest-bearing . . . . . . . . . . . . . . . . 53,571
Interest-bearing . . . . . . . . . . . . . . . . 8,176,873
Federal funds purchased
and securities sold
under agreements to
<PAGE>
repurchase in domestic
offices of the bank and
of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds purchased . . . . . . . . . . . . . . . . 1,207,881
Securities sold under
agreements to repurchase . . . . . . . . . . . . . . . 350,492
Demand notes issued to
the U.S. Treasury . . . . . . . . . . . . . . . . . . . 300,000
Other borrowed money . . . . . . . . . . . . . . . . . . 530,559
Bank's liability on
acceptances executed
and outstanding . . . . . . . . . . . . . . . . . . . . 897,899
Subordinated notes and
debentures . . . . . . . . . . . . . . . . . . . . . . 1,064,780
Other liabilities . . . . . . . . . . . . . . . . . . . . 1,139,025
Total liabilities . . . . . . . . . . . . . . . . . . . . 33,207,233
EQUITY CAPITAL
Perpetual preferred
stock and related surplus . . . . . . . . . . . . . . . 75,000
Common stock . . . . . . . . . . . . . . . . . . . . . . 942,284
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . 525,666
Undivided profits and
capital reserves . . . . . . . . . . . . . . . . . . . 1,342,860
Cumulative foreign
currency translation
adjustments . . . . . . . . . . . . . . . . . . . . . . (4,924)
Total equity capital . . . . . . . . . . . . . . . . . . 2,880,886
Total liabilities,
limited-life preferred
stock, and equity capital . . . . . . . . . . . . . . . $36,088,119
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of Condition
has been prepared in conformance with the instructions issued by the
Board of Governors of the Federal Reserve System and is true to the
best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and 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 issued by the Board of Governors of the Federal
Reserve System and is true and correct.
J. Carter Bacot
Alan R. Griffith Directors
Samuel F. Chevalier
<PAGE>
