Exhibit 4.4

 

EXECUTION VERSION

 

 

KINROSS GOLD CORPORATION

 

As Issuer

 

AURELIAN RESOURCES INC., BGO (BERMUDA) LTD.

KINROSS BRASIL MINERAÇAO S.A.

KINROSS GOLD U.S.A. INC.

CROWN RESOURCES CORPORATION

FAIRBANKS GOLD MINING, INC.

MELBA CREEK MINING, INC.

COMPANIA MINERA MANTOS DE ORO

COMPANIA MlNERA MARICUNGA

RED BACK MINING MAURITANIA NO. 2 LIMITED

RED BACK MINING INC.

ROUND MOUNTAIN GOLD CORPORATION

 

As Guarantors

 

AND

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

 

As Trustee

 




 

Indenture

 

Providing for the Issuance of Securities in Series

 

Dated as of August 22, 2011

 




 

 











 

TABLE OF CONTENTS

 




 

	
 
    	
PAGE
    
	
 
    	
 
    
	
PARTIES
    	
1
    
	
 
    	
 
    
	
RECITALS   OF THE COMPANY
    	
1
    


 

ARTICLE ONE

 

DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION

 

	
SECTION 101.
    	
Definitions
    	
1
    
	
 
    	
Act
    	
2
    
	
 
    	
Additional   Amounts
    	
2
    
	
 
    	
Additional   Interest
    	
2
    
	
 
    	
Affiliate;   control
    	
2
    
	
 
    	
Agent   Members
    	
2
    
	
 
    	
Authenticating   Agent
    	
2
    
	
 
    	
Bankruptcy   Law
    	
2
    
	
 
    	
Board   of Directors
    	
2
    
	
 
    	
Board   Resolution
    	
2
    
	
 
    	
Business   Day
    	
2
    
	
 
    	
Change   of Control
    	
3
    
	
 
    	
Change   of Control Repurchase Event
    	
3
    
	
 
    	
Commission
    	
4
    
	
 
    	
Company
    	
4
    
	
 
    	
Comparable   Treasury Issue
    	
4
    
	
 
    	
Comparable   Treasury Price
    	
4
    
	
 
    	
Company   Request; Company Order
    	
4
    
	
 
    	
Consolidated   Net Tangible Assets
    	
4
    
	
 
    	
Continuing   Director
    	
4
    
	
 
    	
Corporate   Trust Office
    	
4
    
	
 
    	
corporation
    	
5
    
	
 
    	
Covenant   Defeasance
    	
5
    
	
 
    	
Credit   Agreement
    	
5
    
	
 
    	
Credit   Agreement Guarantor
    	
5
    
	
 
    	
Defaulted   Interest
    	
5
    
	
 
    	
Defeasance
    	
5
    
	
 
    	
Depositary
    	
5
    
	
 
    	
Dollars
    	
5
    
	
 
    	
Event   of Default
    	
5
    
	
 
    	
Exchange   Act
    	
5
    
	
 
    	
Exchange   Securities
    	
5
    
	
 
    	
Expiration   Date
    	
5
    
	
 
    	
Funded   Debt
    	
5
    
	
 
    	
GAAP
    	
5
    


 











 

	
 
    	
 
    	
PAGE
    
	
 
    	
 
    	
 
    
	
 
    	
Global   Security
    	
6
    
	
 
    	
Government   Obligations
    	
6
    
	
 
    	
Guarantee
    	
6
    
	
 
    	
Guaranteed   Securities
    	
6
    
	
 
    	
Company
    	
6
    
	
 
    	
Holder
    	
6
    
	
 
    	
IASB
    	
6
    
	
 
    	
IFRS
    	
6
    
	
 
    	
Indebtedness
    	
6
    
	
 
    	
Indenture
    	
6
    
	
 
    	
Independent   Investment Banker
    	
6
    
	
 
    	
Interest   Payment Date
    	
7
    
	
 
    	
Investment   Company Act
    	
7
    
	
 
    	
Investment   Grade
    	
7
    
	
 
    	
Lien
    	
7
    
	
 
    	
Maturity
    	
7
    
	
 
    	
Moody’s
    	
7
    
	
 
    	
Non   U.S. Guarantor
    	
7
    
	
 
    	
Notice   of Default
    	
7
    
	
 
    	
Officer
    	
7
    
	
 
    	
Officers’   Certificate
    	
7
    
	
 
    	
Opinion   of Counsel
    	
7
    
	
 
    	
Outstanding
    	
7
    
	
 
    	
Paying   Agent
    	
8
    
	
 
    	
Person
    	
9
    
	
 
    	
Place   of Payment
    	
9
    
	
 
    	
Predecessor   Security
    	
9
    
	
 
    	
Principal   Property
    	
9
    
	
 
    	
Rating   Agency
    	
9
    
	
 
    	
Redemption   Date
    	
9
    
	
 
    	
Redemption   Price
    	
9
    
	
 
    	
Reference   Treasury Dealer Quotations
    	
9
    
	
 
    	
Reference   Treasury Dealer
    	
10
    
	
 
    	
Regular   Record Date
    	
10
    
	
 
    	
Regulation   S Global Securities
    	
10
    
	
 
    	
Relevant   Taxing Jurisdiction
    	
10
    
	
 
    	
Responsible   Officer
    	
10
    
	
 
    	
Restricted   Global Securities
    	
10
    
	
 
    	
Restricted   Subsidiary
    	
10
    
	
 
    	
Securities
    	
10
    
	
 
    	
Securities   Act
    	
10
    
	
 
    	
Security   Custodian
    	
10
    
	
 
    	
Security   Register; Security Registrar
    	
10
    
	
 
    	
Special   Record Date
    	
10
    
	
 
    	
S&P
    	
11
    
	
 
    	
Stated   Maturity
    	
11
    
	
 
    	
Subsidiary
    	
11
    
	
 
    	
voting   shares
    	
11
    


 

ii











 

	
 
    	
 
    	
PAGE
    
	
 
    	
 
    	
 
    
	
 
    	
Tax   Act
    	
11
    
	
 
    	
Taxes
    	
11
    
	
 
    	
Trigger   Period
    	
11
    
	
 
    	
Treasury   Rate
    	
11
    
	
 
    	
Trust   Indenture Act
    	
11
    
	
 
    	
Trustee
    	
11
    
	
 
    	
USA   PATRIOT ACT
    	
11
    
	
 
    	
Vice   President
    	
12
    
	
 
    	
Voting   Stock
    	
12
    
	
SECTION 102.
    	
Compliance   Certificates and Opinions
    	
12
    
	
SECTION 103.
    	
Form of   Documents Delivered to Trustee
    	
12
    
	
SECTION 104.
    	
Acts   of Holders; Record Dates
    	
13
    
	
SECTION 105.
    	
Notices, Etc.,   to Trustee and Company
    	
15
    
	
SECTION 106.
    	
Notice   to Holders; Waiver
    	
15
    
	
SECTION 107.
    	
Conflict   with Trust Indenture Act
    	
16
    
	
SECTION 108.
    	
Effect   of Headings and Table of Contents
    	
16
    
	
SECTION 109.
    	
Successors   and Assigns
    	
16
    
	
SECTION 110.
    	
Separability   Clause
    	
16
    
	
SECTION 111.
    	
Benefits   of Indenture
    	
16
    
	
SECTION 112.
    	
Governing   Law
    	
16
    
	
SECTION 113.
    	
Legal   Holidays 
    	
16
    
	
SECTION 114.
    	
USA   PATRIOT Act
    	
17
    
	
SECTION 115.
    	
Waiver   of Jury Trial
    	
17
    
	
SECTION 116.
    	
Force   Majeure
    	
17
    


 

ARTICLE TWO

 

SECURITY FORMS

 

	
SECTION 201.
    	
Forms   Generally
    	
17
    
	
SECTION 202.
    	
Form of   Face of Security
    	
18
    
	
SECTION 203.
    	
Form of   Reverse of Security
    	
21
    
	
SECTION 204.
    	
Forms   of Restrictive Legends
    	
25
    
	
SECTION 205.
    	
Form of   Trustee’s Certificate of Authentication
    	
26
    
	
SECTION 206.
    	
Guarantee   by Guarantor; Form of Guarantee
    	
26
    


 

ARTICLE THREE

 

THE SECURITIES

 

	
SECTION 301.
    	
Amount   Unlimited; Issuable in Series
    	
29
    
	
SECTION 302.
    	
Denominations
    	
32
    
	
SECTION 303.
    	
Execution,   Authentication, Delivery and Dating
    	
32
    
	
SECTION 304.
    	
Temporary   Securities
    	
33
    
	
SECTION 305.
    	
Registration,   Registration of Transfer and Exchange, Matters Relating to Global Securities
    	
34
    
	
SECTION 306.
    	
Mutilated,   Destroyed, Lost and Stolen Securities
    	
37
    
	
SECTION 307.
    	
Payment   of Interest; Interest Rights Preserved
    	
37
    
	
SECTION 308.
    	
Persons   Deemed Owners
    	
39
    


 

iii











 

	
 
    	
 
    	
PAGE
    
	
 
    	
 
    	
 
    
	
SECTION 309.
    	
Cancellation
    	
39
    
	
SECTION 310.
    	
Computation   of Interest
    	
39
    
	
SECTION 311.
    	
CUSIP   Numbers
    	
39
    
	
SECTION 312.
    	
Transfer   Restrictions; Forms of Transfer Certificates
    	
39
    


 

ARTICLE FOUR

 

SATISFACTION AND DISCHARGE

 

	
SECTION 401.
    	
Satisfaction   and Discharge of Indenture
    	
42
    
	
SECTION 402.
    	
Application   of Trust Money
    	
43
    


 

ARTICLE FIVE

 

REMEDIES

 

	
SECTION 501.
    	
Events   of Default
    	
43
    
	
SECTION 502.
    	
Acceleration   of Maturity; Rescission and Annulment
    	
44
    
	
SECTION 503.
    	
Collection   of Indebtedness and Suits for Enforcement by Trustee
    	
46
    
	
SECTION 504.
    	
Trustee   May File Proofs of Claim
    	
46
    
	
SECTION 505.
    	
Trustee   May Enforce Claims Without Possession of Securities
    	
47
    
	
SECTION 506.
    	
Application   of Money Collected
    	
47
    
	
SECTION 507.
    	
Limitation   on Suits
    	
47
    
	
SECTION 508.
    	
Unconditional   Right of Holders to Receive Principal, Premium and Interest
    	
48
    
	
SECTION 509.
    	
Restoration   of Rights and Remedies
    	
48
    
	
SECTION 510.
    	
Rights   and Remedies Cumulative
    	
48
    
	
SECTION 511.
    	
Delay   or Omission Not Waiver
    	
49
    
	
SECTION 512.
    	
Control   by Holders
    	
49
    
	
SECTION 513.
    	
Waiver   of Past Defaults
    	
49
    
	
SECTION 514.
    	
Undertaking   for Costs
    	
50
    
	
SECTION 515.
    	
Waiver   of Usury, Stay or Extension Laws
    	
50
    


 

ARTICLE SIX

 

THE TRUSTEE

 

	
SECTION 601.
    	
Certain   Duties and Responsibilities
    	
50
    
	
SECTION 602.
    	
Notice   of Defaults
    	
51
    
	
SECTION 603.
    	
Certain   Rights of Trustee
    	
51
    
	
SECTION 604.
    	
Not   Responsible for Recitals or Issuance of Securities
    	
52
    
	
SECTION 605.
    	
May Hold   Securities
    	
52
    
	
SECTION 606.
    	
Money   Held in Trust
    	
53
    
	
SECTION 607.
    	
Compensation   and Reimbursement
    	
53
    
	
SECTION 608.
    	
Conflicting   Interests
    	
54
    
	
SECTION 609.
    	
Corporate   Trustee Required; Eligibility
    	
54
    
	
SECTION 610.
    	
Resignation   and Removal; Appointment of Successor
    	
54
    
	
SECTION 611.
    	
Acceptance   of Appointment by Successor
    	
56
    
	
SECTION 612.
    	
Merger,   Conversion, Consolidation or Succession to Business
    	
57
    
	
SECTION 613.
    	
Preferential   Collection of Claims Against Company
    	
57
    


 

iv











 

	
 
    	
 
    	
PAGE
    
	
 
    	
 
    	
 
    
	
SECTION 614.
    	
Appointment   of Authenticating Agent
    	
57
    


 

ARTICLE SEVEN

 

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

 

	
SECTION 701.
    	
Company   to Furnish Trustee Names and Addresses of Holders
    	
59
    
	
SECTION 702.
    	
Preservation   of Information; Communications to Holders
    	
59
    
	
SECTION 703.
    	
Reports   by Trustee
    	
59
    
	
SECTION 704.
    	
Reports   by Company
    	
60
    


 

ARTICLE EIGHT

 

CONSOLIDATION, AMALGAMATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

 

	
SECTION 801.
    	
Company   May Consolidate, Etc., Only on Certain Terms
    	
60
    
	
SECTION 802.
    	
Successor   Substituted
    	
61
    
	
SECTION 803.
    	
Securities   to be Secured in Certain Events
    	
61
    


 

ARTICLE NINE

 

SUPPLEMENTAL INDENTURES

 

	
SECTION 901.
    	
Supplemental   Indentures Without Consent of Holders
    	
62
    
	
SECTION 902.
    	
Supplemental   Indentures With Consent of Holders
    	
63
    
	
SECTION 903.
    	
Execution   of Supplemental Indentures
    	
64
    
	
SECTION 904.
    	
Effect   of Supplemental Indentures
    	
64
    
	
SECTION 905.
    	
Conformity   with Trust Indenture Act
    	
64
    
	
SECTION 906.
    	
Reference   in Securities to Supplemental Indentures
    	
65
    


 

ARTICLE TEN

 

COVENANTS

 

	
SECTION 1001.
    	
Payment   of Principal, Premium, Interest and Additional Interest
    	
65
    
	
SECTION 1002.
    	
Maintenance   of Office or Agency
    	
65
    
	
SECTION 1003.
    	
Money   for Securities Payments to Be Held in Trust
    	
65
    
	
SECTION 1004.
    	
Statement   by Officers as to Default
    	
67
    
	
SECTION 1005.
    	
Existence
    	
67
    
	
SECTION 1006.
    	
Additional   Amounts
    	
67
    
	
SECTION 1007.
    	
Waiver   of Certain Covenants
    	
69
    
	
SECTION 1008.
    	
Negative   Pledge
    	
69
    


 

ARTICLE ELEVEN

 

REDEMPTION OF SECURITIES

 

	
SECTION 1101.
    	
Applicability   of Article
    	
71
    
	
SECTION 1102.
    	
Election   to Redeem; Notice to Trustee
    	
71
    
	
SECTION 1103.
    	
Selection   by Trustee of Securities to Be Redeemed
    	
72
    


 

v











 

	
 
    	
 
    	
PAGE
    
	
 
    	
 
    	
 
    
	
SECTION 1104.
    	
Notice   of Redemption
    	
72
    
	
SECTION 1105.
    	
Deposit   of Redemption Price
    	
73
    
	
SECTION 1106.
    	
Securities   Payable on Redemption Date
    	
73
    
	
SECTION 1107.
    	
Securities   Redeemed in Part
    	
74
    
	
SECTION 1108.
    	
Change   of Control Repurchase Event
    	
74
    
	
SECTION 1109.
    	
Tax   Redemption
    	
75
    


 

ARTICLE TWELVE

 

SINKING FUNDS

 

	
SECTION 1201.
    	
Applicability   of Article
    	
76
    
	
SECTION 1202.
    	
Satisfaction   of Sinking Fund Payments with Securities
    	
77
    
	
SECTION 1203.
    	
Redemption   of Securities for Sinking Fund
    	
77
    


 

ARTICLE THIRTEEN

 

DEFEASANCE AND COVENANT DEFEASANCE

 

	
SECTION 1301.
    	
Company’s   Option to Effect Defeasance or Covenant Defeasance
    	
77
    
	
SECTION 1302.
    	
Defeasance   and Discharge
    	
78
    
	
SECTION 1303.
    	
Covenant   Defeasance
    	
78
    
	
SECTION 1304.
    	
Conditions   to Defeasance or Covenant Defeasance
    	
78
    
	
SECTION 1305.
    	
Deposited Money and Government Obligations to Be   Held in Trust; Miscellaneous Provisions
    	
80
    
	
SECTION 1306.
    	
Reinstatement
    	
81
    


 

ARTICLE FOURTEEN

 

GUARANTEE OF GUARANTEED SECURITIES

 

	
SECTION 1401.
    	
Guarantee
    	
81
    
	
SECTION 1402.
    	
Execution   and Delivery of Guarantees
    	
82
    
	
SECTION 1403.
    	
Additional   Guarantees
    	
83
    
	
SECTION 1404.
    	
Release   of Guarantees
    	
83
    


 

ARTICLE FIFTEEN

 

MISCELLANEOUS PROVISIONS

 

	
SECTION 1501.
    	
Consent   to Jurisdiction and Service of Process
    	
83
    
	
SECTION 1502.
    	
Indenture   and Securities Solely Corporate Obligations
    	
85
    
	
SECTION 1503.
    	
Certain   Provisions Concerning the Payment of Interest
    	
85
    
	
SECTION 1504.
    	
Execution   in Counterparts
    	
85
    


 

vi











 

Kinross Gold Corporation

 

Certain Sections of this Indenture relating to Sections 310 through 318,

inclusive, of the Trust Indenture Act of 1939:

 

	
Trust Indenture
    	
 
    	
 
    
	
Act Section
    	
 
    	
Indenture Section
    
	
 
    	
 
    	
 
    	
 
    
	
§ 310(a)
    	
(1)
    	
 
    	
609
    
	
(a)
    	
(2)
    	
 
    	
609
    
	
(a)
    	
(3)
    	
 
    	
Not   Applicable
    
	
(a)
    	
(4)
    	
 
    	
Not   Applicable
    
	
(b)
    	
 
    	
 
    	
608
    
	
 
    	
 
    	
 
    	
610
    
	
§ 311(a)
    	
 
    	
 
    	
613
    
	
(b)
    	
 
    	
 
    	
613
    
	
§ 312(a)
    	
 
    	
 
    	
701
    
	
 
    	
 
    	
 
    	
702
    
	
(b)
    	
 
    	
 
    	
702
    
	
(c)
    	
 
    	
 
    	
702
    
	
§ 313(a)
    	
 
    	
 
    	
703
    
	
(b)
    	
 
    	
 
    	
703
    
	
(c)
    	
 
    	
 
    	
703
    
	
(d)
    	
 
    	
 
    	
703
    
	
§ 314(a)
    	
 
    	
 
    	
704
    
	
(a)
    	
(4)
    	
 
    	
101
    
	
 
    	
 
    	
 
    	
1004
    
	
(b)
    	
 
    	
 
    	
Not   Applicable
    
	
(c)
    	
(1)
    	
 
    	
102
    
	
(c)
    	
(2)
    	
 
    	
102
    
	
(c)
    	
(3)
    	
 
    	
Not   Applicable
    
	
(d)
    	
 
    	
 
    	
Not   Applicable
    
	
(e)
    	
 
    	
 
    	
102
    
	
§ 315(a)
    	
 
    	
 
    	
601
    
	
(b)
    	
 
    	
 
    	
602
    
	
(c)
    	
 
    	
 
    	
601
    
	
(d)
    	
 
    	
 
    	
601
    
	
(e)
    	
 
    	
 
    	
514
    
	
§ 316(a)
    	
 
    	
 
    	
101
    
	
(a)
    	
(1)(A)
    	
 
    	
502
    
	
 
    	
 
    	
 
    	
512
    
	
(a)
    	
(1)(B)
    	
 
    	
513
    
	
(a)
    	
(2)
    	
 
    	
Not   Applicable
    
	
(b)
    	
 
    	
 
    	
508
    
	
(c)
    	
 
    	
 
    	
104
    
	
§ 317(a)
    	
(1)
    	
 
    	
503
    
	
(a)
    	
(2)
    	
 
    	
504
    
	
(b)
    	
 
    	
 
    	
1003
    
	
§ 318(a)
    	
 
    	
 
    	
107
    


 




NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.

 









 

INDENTURE, dated as of August 22, 2011, among Kinross Gold Corporation, a corporation duly organized and existing under the laws of the Province of Ontario, Canada (herein called the “Company”), having its principal office at 25 York Street, 17th Floor Toronto, Ontario, Canada M5J 2V5, Aurelian Resources Inc., BGO (Bermuda) Ltd., Kinross Brasil Mineraçao S.A., Kinross Gold U.S.A. Inc., Crown Resources Corporation, Fairbanks Gold Mining, Inc., Melba Creek Mining, Inc., Compania Minera Mantos de Oro, Compania Minera Maricunga, Red Back Mining Mauritania No. 2 Limited, Red Back Mining Inc. and Round Mountain Gold Corporation (together, herein called the “Guarantors” and each, a “Guarantor”) and Wells Fargo Bank, National Association, a national banking association duly organized and existing under the laws of the United States of America, as Trustee (herein called the “Trustee”).

 

RECITALS OF THE COMPANY AND THE GUARANTORS

 

The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (herein called the “Securities”), to be issued in one or more series as in this Indenture provided.

 

The Guarantors have duly authorized the execution and delivery of this Indenture, and the making of the Guarantees pursuant to this Indenture (the “Guarantees”).

 

All things necessary to make this Indenture a valid agreement of the Company and the Guarantors, in accordance with its terms, have been done.

 

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

 

For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows:

 

ARTICLE ONE

 

DEFINITIONS AND OTHER PROVISIONS

OF GENERAL APPLICATION

 

SECTION 101.              Definitions.

 

For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

(1)                         the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;

 

(2)                         all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;

 











 

(3)                         all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;

 

(4)                         unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this Indenture; and

 

(5)                         the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.

 

“Act”, when used with respect to any Holder, has the meaning specified in Section 104.

 

“Additional Amounts” has the meaning specified in Section 1006.

 

“Additional Interest” shall mean, with respect to any series of Securities, any additional amounts of interest that shall become payable pursuant to any registration rights agreement applicable to such series of Securities as a result of a registration default under such agreement.

 

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

 

“Agent Members” has the meaning specified in Section 305.

 

“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate Securities of one or more series.

 

“Bankruptcy Law” means Title 11, U.S. Code or any similar Federal or state law for the relief of debtors.

 

“Board of Directors” means either the board of directors of the Company or a Guarantor, as the case may be, or any duly authorized committee of that board.

 

“Board Resolution” means a copy of a resolution certified by the Corporate Secretary or an Assistant Corporate Secretary of the Company or a Guarantor to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

“Business Day”, when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law or executive order to close.

 

2











 

“Change of Control” means the occurrence of any of the following:

 

(1)                                 the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger, amalgamation or statutory plan of arrangement or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company and the Company’s subsidiaries taken as a whole to any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) other than to the Company or one of its subsidiaries;

 

(2)                                 the consummation of any transaction (including, without limitation, any merger, amalgamation or statutory plan of arrangement or consolidation) the result of which is that any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the combined voting power of the Voting Stock of the Company or other Voting Stock into which the Company’s Voting Stock is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares;

 

(3)                                 the Company consolidates, amalgamates, or enters into a statutory plan of arrangement with, or merges with or into, any “person” (as that term is used in Section 13(d)(3) of the Exchange Act), or any person consolidates, amalgamates, or enters into a statutory plan of arrangement with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the Company’s outstanding Voting Stock or the Voting Stock of such other person is converted into or exchanged for cash, securities or other property, other than any such transaction where the shares of the Company’s Voting Stock outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, Voting Stock representing more than 50% of the combined voting power of the surviving person immediately after giving effect to such transaction;

 

(4)                                 the first day on which the majority of the members of the Company’s board of directors cease to be Continuing Directors; or

 

(5)                                 the adoption of a plan relating to the Company’s liquidation or dissolution.

 

Notwithstanding the foregoing, any holding company whose only significant asset is capital stock of the Company or any of the Company’s direct or indirect parent companies shall not itself be considered a “person” or “group” for purposes of clause (2) above.

 

“Change of Control Repurchase Event” in respect of a series of Securities means each of the Rating Agencies downgrade their ratings of a series of Securities by at least one “notch” and, following such downgrades, the Securities of such series are rated below Investment Grade by each of the Rating Agencies on any date during the Trigger Period. Notwithstanding the foregoing, no Change of Control Repurchase Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.

 

3











 

“Commission” means the U.S. Securities and Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

 

“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.

 

“Comparable Treasury Issue” means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the Securities to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such Securities.

 

“Comparable Treasury Price” means, with respect to any redemption date, (A) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the Company obtains fewer than three such Reference Treasury Dealer Quotations, the average of all such quotations.

 

“Company Request” or “Company Order” means, respectively, a written request or order signed in the name of the Company by two Officers of the Company, and delivered to the Trustee.

 

“Consolidated Net Tangible Assets” means the aggregate amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom (1) all current liabilities (excluding any portion thereof constituting Funded Debt); and (2) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles, all as set forth on the most recent consolidated balance sheet of the Company and computed in accordance with GAAP.

 

“Continuing Director” means, as of any date of determination, any member of the Company’s board of directors who:

 

(1)                                 was a member of such board of directors on the date of the issuance of the relevant series of Securities; or

 

(2)                                 was nominated for election, elected or appointed to such board of directors with the approval of a majority of the Continuing Directors who were members of such board of directors at the time of such nomination, election or appointment (either by a specific vote or by approval of the Company’s proxy statement in which such member was named as a nominee for election as a director, without objection to such nomination).

 

“Corporate Trust Office” means the office of the Trustee located at 45 Broadway, 14th Floor, New York, New York 10006, Attention: Corporate Trust Services —

 

4











 

Administrator for Kinross Gold Corporation, and as may be located at such other address as the Trustee may give notice to the Company.

 

“corporation” means a corporation, association, company, joint-stock company or business trust.

 

“Covenant Defeasance” has the meaning specified in Section 1303.

 

“Credit Agreement” means the Fourth Amended and Restated Credit Agreement, dated as of March 31, 2011, among Kinross Gold Corporation, Kinross Gold U.S.A., Inc., Round Mountain Gold Corporation and Kinross Brasil Minercaçao S.A., the lending institutions named therein and The Bank of Nova Scotia, as administrative agent, as amended, extended, renewed, restated, supplemented, refunded, replaced or otherwise modified from time to time by one or more credit facilities, and any agreement entered into in substitution therefor.

 

“Credit Agreement Guarantor” means a “Borrower” (other than the Company) or a “Guarantor,” each as such term is defined in the Credit Agreement.

 

“Defaulted Interest” has the meaning specified in Section 307.

 

“Defeasance” has the meaning specified in Section 1302.

 

“Depositary” means, with respect to the Securities of any series, The Depository Trust Company, or any successor thereto, or any other Person designated pursuant to Section 301 with respect to the Securities of such series.

 

“Dollars,” and the dollar sign (“$”), means U.S. Dollars.

 

“Event of Default” has the meaning specified in Section 501.

 

“Exchange Act” means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.

 

“Exchange Securities” means the Securities issued in exchange for, and in an aggregate principal amount equal to, Restricted Global Securities and Regulation S Global Securities pursuant to the terms of a registration rights agreement and containing terms substantially identical to, and evidencing the same indebtedness as, the Restricted Global Securities and Regulation S Global Securities exchanged therefor (except that such Exchange Securities will be registered under the Securities Act and will not bear any legend to the contrary).

 

“Expiration Date” has the meaning specified in Section 104.

 

“Funded Debt” means, as applied to any person, all indebtedness created or assumed by such person maturing after, or renewable or extendable at the option of such person beyond, 12 months from the date of creation thereof.

 

“GAAP” means IFRS as issued by the IASB in effect from time to time or, if different and if then used by the Company for the Company’s public financial reporting

 

5











 

purposes in Canada, generally accepted accounting principles in Canada or the United States.

 

“Global Security” has the meaning specified in Section 201.

 

“Government Obligations” means, with respect to a series of Securities, direct obligations of the government that issues the currency in which the Securities of the series are payable for the payment of which the full faith and credit of such government is pledged, or obligations of a Person controlled or supervised by and acting as an agency or instrumentality of such government, the payment of which is unconditionally guaranteed as a full faith and credit obligation by such government.

 

“Guarantee” means any guarantee of the Guarantor as endorsed on a Security authenticated and delivered pursuant to this Indenture and shall include the Guarantee set forth in Section 1401 of this Indenture and all other obligations and covenants of the Guarantor contained in this Indenture and any Guaranteed Securities.

 

“Guaranteed Securities” means Securities issued by the Company and guaranteed by one or more Guarantors and authenticated and delivered under this Indenture.

 

“Guarantor” means (a) any Person named as a “Guarantor” in the first paragraph of this instrument, and (b) any Person who shall be named as a Guarantor pursuant to a Supplemental Indenture, until, in each case (1) a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Guarantor” shall mean such successor Person or (2) until the Guarantees provided by such Guarantor terminate in accordance with the terms as set forth therein or herein.

 

“Holder” means a Person in whose name a Security is registered in the Security Register.

 

“IASB” means the International Accounting Standards Board.

 

“IFRS” means International Financial Reporting Standards.

 

“Indebtedness” means all obligations for borrowed money represented by notes, bonds, debentures or similar evidence of indebtedness and obligations for borrowed money evidenced by credit, loan or other like agreements.

 

“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and that govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 301.

 

“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Company.

 

6











 

“Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.

 

“Investment Company Act” means the Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.

 

“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating categories of Moody’s); a rating of BBB- or better by S&P (or its equivalent under any successor rating categories of S&P); and the equivalent investment grade credit rating from any additional rating agency or rating agencies selected by the Company.

 

“Lien” means any deed of trust, mortgage, charge, hypothec, assignment, pledge, lien, vendor’s privilege, vendor’s right of reclamation or other security interest or encumbrance of any kind incurred or assumed in order to secure payment of Indebtedness.

 

“Maturity”, when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.

 

“Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.

 

“Non U.S. Guarantor” means any Guarantor whose jurisdiction of organization is not the United States or one of its states or the District of Columbia.

 

“Notice of Default” means a written notice of the kind specified in Section 501(4).

 

“Officer” means the Chairman of the Board, any Vice Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the Chief Legal Officer, the Treasurer, any Assistant Treasurer, the Controller, any Assistant Controller, the Corporate Secretary or any Assistant Corporate Secretary of a Person.

 

“Officers’ Certificate” means a certificate signed by two Officers of the Company and delivered to the Trustee. One of the Officers signing an Officers’ Certificate given pursuant to Section 1004 shall be the Chief Executive Officer or the Chief Financial Officer of the Company.

 

“Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Company, and who shall be acceptable to the Trustee. Such counsel may be an employee of or counsel to the Company or the Trustee.

 

“Outstanding”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:

 

7











 

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

 

(2)                         Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;

 

(3)                         Securities as to which Defeasance has been effected pursuant to Section 1302; and

 

(4)                         Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;

 

provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 301, (B) the principal amount of a Security denominated in one or more foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 301, of the principal amount of such Security (or, in the case of a Security described in Clause (A) above, of the amount determined as provided in such Clause), and (C) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.

 

“Paying Agent” means any Person authorized by the Company to pay the principal of or any premium or interest on, and any Additional Amounts with respect to, any Securities on behalf of the Company.

 

8











 

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

 

“Place of Payment”, when used with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on, and any Additional Amounts with respect to, the Securities of that series are payable as specified as contemplated by Section 301.

 

“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.

 

“Principal Property” means the interest of the Company or any Restricted Subsidiary in any (a) mineral property or (b) manufacturing or processing plant, building, structure, dam or other facility, together with the land upon which it is erected and fixtures comprising a part thereof, whether owned as of the date of this Indenture or thereafter acquired or constructed by the Company or any Restricted Subsidiary, the net book value of which interest, in each case, on the date as of which the determination is being made, is an amount that exceeds 7% of Consolidated Net Tangible Assets, except any such mineral property, plant, building, structure, dam or other facility or any portion thereof, together with the land upon which it is erected and fixtures comprising a part thereof, (i) acquired or constructed principally for the purpose of controlling or abating atmospheric pollutants or contaminants, or water, noise, odor or other pollution or (ii) which the Board of Directors of the Company by resolution declares is not of material importance to the total business conducted by the Company and its Restricted Subsidiaries considered as one enterprise.

 

“Rating Agency” means each of Moody’s and S&P; provided that, if either Moody’s or S&P ceases to rate any series of Securities or fails to make a rating of any series of Securities publicly available for any reason that is beyond the Company’s control, the Company may select (as certified by a resolution of the Company’s board of directors) a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act, as a replacement agency for Moody’s or S&P, or both of them, with respect to such series of Securities, as the case may be.

 

“Redemption Date”, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.

 

“Redemption Price”, when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.

 

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal

 

9











 

amount) quoted in writing to the Company by such Reference Treasury Dealer at 3:30 p.m. New York time on the third Business Day preceding such redemption date.

 

“Reference Treasury Dealer” means each of Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. LLC and UBS Securities LLC, or their respective affiliates which are primary U.S. government securities dealers, and two other primary U.S. government securities dealers in the United States (each a “primary treasury dealer”) selected by the Company, and their respective successors; provided, however, that if any of the foregoing or their affiliates shall cease to be a primary treasury dealer, the Company shall substitute another primary treasury dealer.

 

“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 301.

 

“Regulation S Global Securities” has the meaning specified in Section 201.

 

“Relevant Taxing Jurisdiction” has the meaning specified in Section 1006.

 

“Responsible Officer”, when used with respect to the Trustee, means any vice president, any assistant vice president, any trust officer or assistant trust officer, or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

 

“Restricted Global Securities” has the meaning specified in Section 201.

 

“Restricted Subsidiary” means (1) any Subsidiary of the Company which owns or leases a Principal Property; and (2) any Subsidiary of the Company engaged primarily in the business of owning or holding securities of Restricted Subsidiaries.

 

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

 

“Securities Act” means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.

 

“Security Custodian” means, with respect to Securities of a series issued in global form, the Trustee for Securities of such series, as custodian with respect to the Securities of such series, or any successor entity thereto.

 

“Security Register” and “Security Registrar” have the respective meanings specified in Section 305.

 

“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307.

 

10









 

“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies Inc., and its successors.

 

“Stated Maturity”, when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.

 

“Subsidiary” means, at any relevant time, any person of which the voting shares or other interests carrying more than 50% of the outstanding voting rights attached to all outstanding voting shares or other interests are owned, directly or indirectly, by a person and/or one or more subsidiaries of such person.

 

For the purposes of this definition, “voting shares” means interests which ordinarily have voting power for the election of directors, whether at all times or only so long as no senior class of interests has such voting power by reason of any contingency.

 

“Tax Act” means the Income Tax Act (Canada) and the Income Tax Regulations (Canada).

 

“Taxes” has the meaning specified in Section 1006.

 

“Trigger Period” means that period commencing on the date of the first public announcement by the Company of any Change of Control (or pending Change of Control) and ending 60 days following consummation of such Change of Control (which period shall be extended, with respect to any series of Security, so long as the rating of the Securities of such series is under publicly announced consideration for a possible downgrade by any of the Rating Agencies).

 

“Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity or interpolated (on a day count basis) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.

 

“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.

 

“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.

 

“USA PATRIOT ACT” has the meaning specified in Section 114.

 

11











 

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

 

“Voting Stock” of any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date means the capital stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person.

 

SECTION 102.     Compliance Certificates and Opinions.

 

Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if to be given by an Officer of the Company, or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.

 

Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in Section 1004) shall include,

 

(1)      a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

 

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

 

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

 

(4)      a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.

 

SECTION 103.     Form of Documents Delivered to Trustee.

 

In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

 

12











 

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

 

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

 

SECTION 104.     Acts of Holders; Record Dates.

 

Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.

 

The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him or her the execution thereof. Where such execution is by a signer acting in a capacity other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.

 

The ownership of Securities shall be proved by the Security Register.

 

Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.

 

13











 

The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106.

 

The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to institute proceedings referred to in Section 507(2) or (iv) any direction referred to in Section 512, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 106.

 

With respect to any record date set pursuant to this Section, the party hereto which sets such record dates may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given

 

14











 

to the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 106, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.

 

Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.

 

SECTION 105.     Notices, Etc., to Trustee and Company.

 

Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

 

(1)        the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing (including telecopy) to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Services — Administrator for Kinross Gold Corporation, or

 

(2)        the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing (including telecopy) and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company.

 

SECTION 106.     Notice to Holders; Waiver.

 

Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

 

15











 

If by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.

 

SECTION 107.     Conflict with Trust Indenture Act.

 

If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act which is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.

 

SECTION 108.     Effect of Headings and Table of Contents.

 

The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

SECTION 109.     Successors and Assigns.

 

All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.

 

SECTION 110.     Separability Clause.

 

In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

SECTION 111.     Benefits of Indenture.

 

Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

SECTION 112.     Governing Law.

 

This Indenture and the Securities shall be governed by and construed in accordance with the law of the State of New York, without regard to conflicts of laws principles thereof.

 

SECTION 113.     Legal Holidays.

 

In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply in lieu of this Section)) payment of interest or principal (and premium, if any) need not be made

 

16











 

at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity.

 

SECTION 114.     USA PATRIOT Act.

 

The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act of 2001, Pub. L. 107-56, as amended (the “USA PATRIOT Act”), the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may require in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.

 

SECTION 115.     Waiver of Jury Trial.

 

EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.

 

SECTION 116.     Force Majeure.

 

In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services. The Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as possible.

 

ARTICLE TWO

 

SECURITY FORMS

 

SECTION 201.     Forms Generally.

 

The Securities of each series, and any Guarantees thereupon, shall be in substantially the form set forth in this Article, or in such other form as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required or permitted by this Indenture, determined by the officers executing such Securities, as evidenced by their execution

 

17











 

thereof. If the form of Securities of any series, or any Guarantees thereupon, is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Corporate Secretary or an Assistant Corporate Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities.

 

The definitive Securities and Guarantees 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. A Security (including any Guarantee endorsed thereon) may be in substantially the form set forth in Sections 202, 203 and 206, or a Security (including any Guarantee endorsed thereon) may be in any form established by or pursuant to authority granted by one or more Board Resolutions and set forth in an Officers’ Certificate or supplemental indenture pursuant to Section 301.

 

Securities offered and sold in reliance on Rule 144A under the Securities Act shall be initially represented by one or more certificates in registered global form without interest coupons (collectively, the “Restricted Global Securities”) and will be deposited with the Trustee as custodian for the Depositary and registered in the name of the Depositary or its nominee. The Restricted Global Securities (and any notes issued in exchange for the Restricted Global Securities, other than Exchange Securities), including beneficial interests in the Restricted Global Securities, will be subject to certain restrictions on transfer set forth therein and in this Indenture and will bear the legend regarding such restrictions set forth in Section 204

 

Securities offered and sold in reliance on Regulation S under the Securities Act shall be initially represented by one or more certificates in registered global form without interest coupons (collectively, the “Regulation S Global Securities” and, together with the Restricted Global Securities, any Exchange Securities issued in Exchange for Restricted Global Securities or Regulation S Global Securities, and any other Securities issued in global form and registered in the name of a Depository or its nominee, the “Global Securities”) and will be deposited with the trustee as custodian for the Depositary and registered in the name of the Depositary or its nominee. Such Securities shall bear the applicable legends set forth in Section 204.

 

SECTION 202.     Form of Face of Security.

 

[Insert any legend required by the Internal Revenue Code and the regulations thereunder.]

 

KINROSS GOLD CORPORATION

 

	
 
    	
CUSIP No.        
    
	
 
    	
 
    
	
No.
    	
$       
    


 

Kinross Gold Corporation, a corporation duly organized and existing under the laws of the Province of Ontario, Canada (herein called the “Company”, which term

 

18











 

includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to                        , or registered assigns, the principal sum of                     [if applicable, insert — Dollars]  [if applicable, insert currency in which Security is demanded] [if the Security is a Global Security, insert —, as such principal sum may be modified from time to time as set forth on Schedule A hereto,] on                   [if the Security is to bear interest prior to Maturity, insert — , and to pay interest [if applicable, insert — and Additional Amounts (if any)] thereon from or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on          and            in each year, commencing              , at the rate of % per annum (computed on the basis of a 360-day year consisting of twelve 30-day months), until the principal hereof is paid or made available for payment [if applicable, insert — , provided that any principal and premium, and any such installment of interest [if applicable, insert — and Additional Amounts], which is overdue shall bear interest at the rate of % per annum (computed on the basis of a 360-day year consisting of twelve 30-day months) (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest [if applicable, insert — and Additional Amounts shall be payable on demand]. The interest [if applicable, insert — and Additional Amounts (if any)] so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the        or       (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest [if applicable, insert — and Additional Amounts (if any)] not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture].

 

[If the Security is not to bear interest prior to Maturity, insert — The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any overdue premium shall bear interest at the rate of     % per annum (computed on the basis of a 360-day year consisting of twelve 30-day months) (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment. Interest on any overdue principal or premium shall be payable on demand. [Any such interest on overdue principal or premium which is not paid on demand shall bear interest at the rate of      % per annum (computed on the basis of a 360-day year consisting of twelve 30-day months) (to the extent that the payment of such interest on interest shall be legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment. Interest on any overdue interest shall be payable on demand.]]

 

19











 

Payment of the principal of (and premium, if any) and [if applicable, insert — any such] interest on [if applicable, insert — , and any Additional Amounts with respect to], this Security shall be made at the office or agency of the Company maintained for that purpose in             , in such coin or currency of [if applicable, insert —] [the United States of America] [if applicable insert name of other jurisdiction] as at the time of payment is legal tender for payment of public and private debts [if applicable, insert — ; provided, however, that at the option of the Company payment of interest [if applicable, insert — and Additional Amounts (if any)] may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register].

 

Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

 

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.

 

	
 
    	
KINROSS GOLD CORPORATION
    
	
 
    	
 
    
	
 
    	
By
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By
    	
 
    


 

[if the Security is a Global Security, insert — Schedule A

 

SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY

The following increases or decreases in this Global Security have been made:

 

	
 
    	
 
    	
Amount of
    	
 
    	
Amount of
    	
 
    	
Principal Amount
    	
 
    	
Signature of
    
	
 
    	
 
    	
Decrease in
    	
 
    	
Increase in
    	
 
    	
of this Global
    	
 
    	
Authorized
    
	
 
    	
 
    	
Principal
    	
 
    	
Principal
    	
 
    	
Note Following
    	
 
    	
Signatory of
    
	
 
    	
 
    	
Amount of this
    	
 
    	
Amount of this
    	
 
    	
Such Decrease or
    	
 
    	
Trustee or Notes
    
	
Date
    	
 
    	
Global Note
    	
 
    	
Global Note
    	
 
    	
Increase
    	
 
    	
Custodian
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


]

 

20









 

SECTION 203.     Form of Reverse of Security.

 

This Security is one of a duly authorized issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of August 22, 2011 (herein called the “Indenture”, which term shall have the meaning assigned to it in such instrument), between the Company and Wells Fargo Bank, National Association, as Trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable, insert —, limited in aggregate principal amount to $        ].

 

[If applicable, insert — The Securities of this series are subject to redemption upon not less than 30 days’ notice, [if applicable, insert — (1) on             in any year commencing with the year and ending with the year        through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] at any time [if applicable, insert — on or after          , 20  , as a whole or in part, at the election of the Company, at the following Redemption Prices [if applicable, insert — (expressed as percentages of the principal amount)]: If redeemed [if applicable, insert — on or before        ,    %, and if redeemed]  [if applicable, insert — prior to         , at a Redemption Price equal to the greater of (i) 100% of the principal amount called for redemption and (ii) the sum of the present values of the remaining scheduled payments of principal and interest (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semi-annual basis (assuming a 360- day calendar year consisting of twelve 30-day months) at the Treasury Rate plus      basis points, as calculated by the Independent Investment Banker upon whom the Company, the Trustee and any paying agent shall be entitled to rely conclusively for such purposes, [if applicable, insert and, if on or after such date, the Securities of this series are redeemable in whole, but not in part, at a Redemption Price equal to 100% of the principal amount,] plus, in each case, accrued interest thereon to, but not including, the date of redemption]  [if applicable, insert — during the 12-month period beginning        of the years indicated,

 

	
 
    	
 
    	
Redemption
    	
 
    	
 
    	
 
    	
Redemption
    
	
Year
    	
 
    	
Price
    	
 
    	
Year
    	
 
    	
Price
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    	
 
    


 

and thereafter at a Redemption Price equal to     % of the principal amount, together in the case of any such redemption [if applicable, insert — (whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date], but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]

 

21











 

[If applicable, insert — The Securities of this series are subject to redemption upon not less than 30 days’ notice, (1) on      in any year commencing with the year        and ending with the year through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert — on or after          ], as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning            of the years indicated,

 

	
 
    	
 
    	
Redemption Price
    	
 
    	
 
    
	
 
    	
 
    	
For Redemption
    	
 
    	
Redemption Price For
    
	
 
    	
 
    	
Through Operation
    	
 
    	
Redemption Otherwise
    
	
 
    	
 
    	
of the
    	
 
    	
Than Through Operation
    
	
Year
    	
 
    	
Sinking Fund
    	
 
    	
of the Sinking Fund
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    	
 
    	
 
    


 

and thereafter at a Redemption Price equal to % of the principal amount, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]

 

[If applicable, insert — Notwithstanding the foregoing, the Company may not, prior to , redeem any Securities of this series as contemplated by [if applicable, insert — Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Company (calculated in accordance with generally accepted financial practice) of less than .....% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months).]

 

[If applicable, insert — The sinking fund for this series provides for the redemption on             in each year        beginning with the year and ending with the year           of [if applicable, insert — not less than $           (“mandatory sinking fund”) and not more than] $          aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than through [if applicable, insert — mandatory] sinking fund payments may be credited against subsequent [if applicable, insert — mandatory] sinking fund payments otherwise required to be made [if applicable, insert — , in the inverse order in which they become due].]

 

22











 

[If the Security is subject to a Change of Control repurchase obligation, insert — The provisions of the Indenture requiring the Company to make a repurchase offer, if a Change of Control Repurchase Event occurs, apply to this Security.]

 

[If the Security is subject to a Tax Redemption option, insert — The Indenture contains provisions granting the Company the right to redeem this Security at any time if there is a change in law that obliges the Company to pay Additional Amounts with respect to the security.]

 

[If the Security is subject to redemption of any kind, insert — In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]

 

[If applicable, insert — The Indenture contains provisions for defeasance at any time of [the entire indebtedness of this Security]  [or]  [certain restrictive covenants and Events of Default with respect to this Security]  [, in each case] upon compliance with certain conditions set forth in the Indenture.]

 

[If applicable, insert — If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.]

 

[If applicable, insert provisions regarding Additional Amounts]

 

[If applicable, insert provisions regarding Additional Interest]

 

The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities at the time Outstanding, on behalf of the Holders of all Securities, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.

 

As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, the Holders of not less than 25% in principal amount of the Securities with respect to which an Event of Default has occurred at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee

 

23











 

indemnity satisfactory to it, and the Trustee shall not have received from the Holders of a majority in principal amount of Securities with respect to which an Event of Default has occurred at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

 

No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on [if applicable, insert —, and any Additional Amounts with respect to,] this Security at the times, place and rate, and in the coin or currency, herein prescribed.

 

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium interest on [if applicable, insert —, and any Additional Amounts with respect to,] this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

The Securities of this series are issuable only in registered form without coupons in denominations of $      [If applicable, insert — and integral multiples]  [If applicable, insert — thereof]  [If applicable, insert — of $      in excess of $       ]. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

 

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax, assessment or other governmental charge payable in connection therewith.

 

Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.

 

All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

24











 

SECTION 204.     Forms of Restrictive Legends.

 

(1)        Unless otherwise specified as contemplated by Section 301, every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:

 

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

 

(2)        Unless otherwise specified as contemplated by Section 301, every Restricted Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form, in addition to the legend contemplated by Section 204(1):

 

THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.

 

THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) TO THE ISSUER OR ANY OF ITS SUBSIDIARIES, (II) IN THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT TO RULE 144 UNDER THE SECURITIES ACT, IF APPLICABLE, OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION REQUIRED BY THE INDENTURE, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.

 

25











 

(3)        Unless otherwise specified as contemplated by Section 301, every Security shall bear the following legend until the date that is 4 months and one day after the date that such Securities are distributed:

 

UNLESS PERMITTED UNDER APPLICABLE CANADIAN SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY IN CANADA BEFORE THE DATE THAT IS FOUR MONTHS AND A DAY AFTER [INSERT DISTRIBUTION DATE].

 

(4)        Unless otherwise specified as contemplated by Section 301, any Exchange Security shall bear the following legend until the date that is 4 months and one day after the date of distribution of the Security for which the Exchange Security was issued:

 

UNLESS PERMITTED UNDER APPLICABLE CANADIAN SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST NOT TRADE THE SECURITY IN CANADA BEFORE THE DATE THAT IS FOUR MONTHS AND A DAY AFTER [INSERT DISTRIBUTION DATE].

 

SECTION 205.     Form of Trustee’s Certificate of Authentication.

 

The Trustee’s certificates of authentication shall be in substantially the following form:

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

	
Dated:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
WELLS FARGO BANK,
    
	
 
    	
NATIONAL ASSOCIATION
    
	
 
    	
As   Trustee
    
	
 
    	
 
    
	
 
    	
By 
    	
,
    
	
 
    	
Authorized   Signatory
    


 

SECTION 206.     Guarantee by Guarantor; Form of Guarantee.

 

Guarantees to be endorsed on Guaranteed Securities shall, subject to Section 201, be in substantially the form set forth below or in any other form established by or pursuant to authority granted by one or more Board Resolutions and set forth in an Officers’ Certificate or supplemental indenture pursuant to Section 301:

 

GUARANTEE

OF

[Insert name of Guarantor(s)]

 

For value received, [Insert name of Guarantors], a [Insert type of entities] under the laws of [Insert jurisdictions of organization], (herein called the “Guarantor[s]”, which

 

26











 

term includes any successor Person under the Indenture referred to in the Security upon which this Guarantee is endorsed), hereby [If applicable, insert — jointly and severally] unconditionally and irrevocably guarantees to the Holder of the Security upon which this Guarantee is endorsed and to the Trustee on behalf of each such Holder the due and punctual payment of the principal of, premium, if any, and interest on such Security, the due and punctual payment of any Additional Amounts that may be payable with respect to such Security, and the due and punctual payment of the sinking fund or analogous payments referred to therein, if any, when and as the same shall become due and payable, whether on the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, according to the terms thereof and of the Indenture referred to therein. In case of the failure of Kinross Gold Corporation, a corporation organized under the laws of the Province of Ontario (herein called the “Company”, which term includes any successor Person under such Indenture), punctually to make any such payment of principal, premium, if any, or interest, or any Additional Amounts that may be payable with respect to such Security or any such sinking fund or analogous payment, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether on the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Company.

 

The Guarantor hereby agrees that its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of such Security or such Indenture, any failure to enforce the provisions of such Security or such Indenture, or any waiver, modification or indulgence granted to the Company with respect thereto, by the Holder of such Security or the Trustee or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of the Guarantor, increase the principal amount of such Security, or increase the interest rate thereon, or increase any premium payable upon redemption thereof, or alter the Stated Maturity thereof. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to such Security or the indebtedness evidenced thereby or with respect to any Additional Amounts that may be payable with respect to such Security or any sinking fund or analogous payment required under such Security and all demands whatsoever, and covenants that its obligations under this Guarantee will not be discharged except by payment in full of the principal of, premium, if any, and interest and any Additional Amounts that may be payable with respect to such Security.

 

The Guarantor shall be subrogated to all rights of the Holder of such Security and the Trustee against the Company in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided, however, that the Guarantor shall not be entitled to enforce or to receive any payments arising out of or based upon such right of subrogation until the principal of, premium, if any, and interest on all Securities of the same series issued under such Indenture and any Additional Amounts that may be payable with respect to such Securities shall have been paid in full.

 

27









 

No reference herein to such Indenture and no provision of this Guarantee or of such Indenture shall alter or impair the guarantees of the Guarantor, which are absolute and unconditional, of the due and punctual payment of the principal of, premium, if any, and interest on, and any Additional Amounts that may be payable with respect to, and any sinking fund or analogous payments with respect to, the Security upon which this Guarantee is endorsed.

 

This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Security to which it relates shall have been manually executed by or on behalf of the Trustee under such Indenture.

 

The Guarantor will be released and relieved of its obligations under this Guarantee, and the Guarantee will be terminated, upon the request of the Company or the Guarantor (without the consent of the Trustee) if (i) the Guarantor shall cease to be a Credit Agreement Guarantor or will be released and relieved of its obligations under the Credit Agreement concurrently with the release of the Guarantee of the Securities and (ii) upon satisfaction and discharge of the Indenture or defeasance or covenant defeasance in accordance with the terms of the Indenture.

 

The Guarantor, and by its acceptance of Securities, each Holder, hereby confirms that it is the intention of all such parties that the Guarantee of each such Guarantor not constitute (i) a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to its Guarantee or (ii) an unlawful distribution under any applicable state law prohibiting shareholder distributions by an insolvent subsidiary to the extent applicable to its Guarantee.

 

All terms used in this Guarantee which are defined in such Indenture shall have the meanings assigned to them in such Indenture.

 

This Guarantee shall be governed by and construed in accordance with the laws of the State of New York.

 

	
Executed and dated as of [date].
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
[Insert name of Guarantor(s)]
    
	
 
    	
 
    
	
 
    	
By
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
By
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
				


 

Reference is made to Article Fourteen for further provisions with respect to the Guarantees.

 

28











 

ARTICLE THREE

 

THE SECURITIES

 

SECTION 301.     Amount Unlimited; Issuable in Series.

 

The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.

 

The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution and, subject to Section 303, set forth, or determined in the manner provided, in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,

 

(1)           the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);

 

(2)           any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Sections 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder);

 

(3)           the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;

 

(4)           the date or dates on which the principal of and any premium on any Securities of the series is payable;

 

(5)           the rate or rates, or the method of determination thereof, at which any Securities of the series shall bear interest, if any, the date or dates from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable on any Interest Payment Date, or if other than as provided herein, the Person to whom any interest on Securities of the series shall be payable, and whether, under what circumstances and in what manner any Additional Amounts with respect to such Securities shall be payable;

 

(6)           the place or places where the principal of and any premium and interest on, and any Additional Amounts with respect to, any Securities of the series shall be payable;

 

(7)           the period or periods within which, the price or prices (whether denominated in cash, securities or otherwise) at which and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which

 

29











 

any election by the Company to redeem the Securities shall be exercised and evidenced;

 

(8)           the obligation, if any, of the Company to redeem or purchase any Securities of the series pursuant to any sinking fund or analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;

 

(9)           if other than denominations of $2,000 and integral multiples of $1,000 in excess thereof, the denominations in which any Securities of the series shall be issuable;

 

(10)         if the amount of the principal of or any premium or interest on, or any Additional Amounts with respect to, any Securities of the series may be determined with reference to an index or pursuant to a formula, the manner in which such amounts shall be determined;

 

(11)         if other than the currency of the United States of America, the currency, currencies or currency units, or the form, including equity securities, other debt securities (including Securities), warrants or any other securities or property of the Company or any other Person, in which the principal of or any premium (if any) or interest on, and any Additional Amounts with respect to, any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for purposes of the definition of “Outstanding” in Section 101;

 

(12)         if the principal of or any premium or interest on, or any Additional Amounts with respect to, any Securities of the series is to be payable, at the election of the Company or the Holder thereof, in one or more currencies or currency units other than that or those in which such Securities are stated to be payable, the currency, currencies or currency units in which the principal of or any premium or interest on, or any Additional Amounts with respect to, such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);

 

(13)         if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502;

 

(14)         if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);

 

30











 

(15)         if applicable, that the Securities of the series, in whole or any specified part, shall be defeasible pursuant to Section 1302 or Section 1303 or both such Sections and, if other than by a Board Resolution, the manner in which any election by the Company to defease such Securities shall be evidenced;

 

(16)         if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 204 and any circumstances in addition to or in lieu of those set forth in Clause (2) of the last paragraph of Section 305 in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof;

 

(17)         any addition to or change in the Events of Default that applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 502;

 

(18)         any addition to or change in the covenants set forth in Article Ten which applies to Securities of the series;

 

(19)         any restrictions or other provisions with respect to the transfer or exchange of Securities of the series, which may amend, supplement, modify or supersede those contained in this Article Three;

 

(20)         if the Securities of the series are to be convertible into or exchangeable for capital stock, other debt securities (including Securities), warrants, other equity securities or any other securities or property of the Company or any other Person, at the option of the Company or the Holder or upon the occurrence of any condition or event, the terms and conditions for such conversion or exchange;

 

(21)         whether Securities of the series are to be issuable as Restricted Global Securities, Regulation S Global Securities or both, or issued without some or all of the legends specified in Section 204 because such Securities are initially issued pursuant to an effective registration statement under the Securities Act, or otherwise, and the obligation, if any, of the Company to issue Exchange Securities in exchange therefor pursuant to any registration rights agreement, and any other related terms; and

 

(22)         any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 901(5)).

 

The Company may, without notice to or the consent of any holder, create and issue additional Securities of any series. All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to

 

31











 

Section 303) set forth, or determined in the manner provided, in the Officers’ Certificate or Company Order referred to above or in any such indenture supplemental hereto.

 

If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be set forth in an Officers’ Certificate or certified by the Corporate Secretary or an Assistant Corporate Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth the terms of the series.

 

SECTION 302.     Denominations.

 

The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 301. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $2,000 and integral multiples of $1,000 in excess thereof.

 

SECTION 303.     Execution, Authentication, Delivery and Dating.

 

Two Officers of the Company shall sign the Securities on behalf of the Company by manual or facsimile signature.

 

Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.

 

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Exchange Securities to be issued in exchange for any series of Restricted Global Securities and Regulation S Global Securities, executed by the Company for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities.

 

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If the form or terms of the Securities of the series have been established by or pursuant to one or more Board Resolutions as permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating,

 

(1)           if the form of such Securities has been established by or pursuant to Board Resolution as permitted by Section 201, that such form has been established in conformity with the provisions of this Indenture;

 

32











 

(2)           if the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 301, that such terms have been established in conformity with the provisions of this Indenture; and

 

(3)           that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;

 

If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.

 

Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.

 

Each Security shall be dated the date of its authentication.

 

No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 309, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.

 

SECTION 304.     Temporary Securities.

 

Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Officers executing such Securities may determine, as evidenced by their execution of such Securities.

 

33











 

If temporary Securities of any series are issued, the Company shall cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series, evidencing the same indebtedness, upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.

 

SECTION 305.                              Registration, Registration of Transfer and Exchange, Matters Relating to Global Securities.

 

The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided.

 

Upon surrender for registration of transfer of any Security of a series at the office or agency of the Company in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount.

 

At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.

 

All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

 

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

 

34











 

No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.

 

If the Securities of any series (or of any series and specified tenor) are to be redeemed in part, the Company shall not be required (A) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of any such Securities selected for redemption under Section 1103 and ending at the close of business on the day of such mailing, or (B) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.

 

The provisions of Clauses (1), (2), (3), (4), (5), (6) and (7) below shall apply only to Global Securities:

 

(1)           Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture. Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount, of outstanding Securities represented thereby shall be made by the Trustee (i) in such manner and upon written instructions given by such Person or Persons as shall be specified in such Security or in a Company Order to be delivered to the Trustee pursuant to Section 303 or (ii) otherwise in accordance with written instructions or such other written form of instructions as is customary for the Depositary for such Security, from such Depositary or its nominee on behalf of any Person having a beneficial interest in such Global Security. Subject to the provisions of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified in such Security or in the applicable Company Order. With respect to the Securities of any series that are represented by a Global Security, the Company authorizes the execution and delivery by the Trustee of a letter of representations or other similar agreement or instrument in the form customarily provided for by the Depositary appointed with respect to such Global Security. Any Global Security may be deposited with the Depositary or its nominee, or may remain in the custody of the Trustee or the Security Custodian therefore pursuant to a FAST Balance Certificate Agreement or similar agreement between the Trustee and the Depositary. If a Company Order has been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 102 and need not be accompanied by an Opinion of Counsel.

 

(2)           Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary, or the Trustee or the Security Custodian as its custodian, or

 

35











 

under such Global Security, and the Depositary may be treated by the Company, the Trustee or the Security Custodian and any agent of the Company, the Trustee or the Security Custodian as the absolute owner of such Global Security for all purposes whatsoever, except as required by law. Notwithstanding the foregoing, (i) the registered holder of a Global Security of a series may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action that a Holder of Securities of such series is entitled to take under this Indenture or the Securities of such series and (ii) nothing herein shall prevent the Company, the Trustee or the Security Custodian, or any agent of the Company, the Trustee or the Security Custodian, from giving effect to any written certification, proxy or other authorization furnished by the Depositary or shall impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a beneficial owner of any Security.

 

(3)           Notwithstanding any other provision in this Indenture, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (A) such Depositary has notified the Company that it is unwilling, unable or no longer qualified to continue as Depositary for such Global Security (unless a replacement Depository is named), (B) there shall have occurred and be continuing an Event of Default with respect to such Global Security and the Depository requests the issuance of certificated Securities, (C) the Company so determines, as evidenced by a Company Order or (D) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 301.

 

(4)           Subject to Clause (2) above, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.

 

(5)           Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section 305, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.

 

(6)           Neither the Company nor the Trustee shall have any responsibility or liability for any aspect of the records relating to, or payments made on account of, Securities by the Depositary, or for maintaining, supervising or reviewing any records of the Depositary relating to such Securities. Neither the Company nor the Trustee shall be liable for any delay by the related Holder of the Global Security or the Depositary in identifying the beneficial owners, and each such Person may conclusively rely on, and shall be protected in conclusively relying on, instructions from such Holder of the Global Security or the Depositary for all purposes (including

 

36











 

with respect to the registration and delivery, and the respective principal amounts, of the Securities to be issued).

 

(7)           Notwithstanding the provisions of Sections 201 and 307, unless otherwise specified as contemplated by Section 301, payment of principal of, any premium and interest on, and any Additional Amounts with respect to, any Global Security shall be made to the Person or Persons specified therein.

 

SECTION 306.     Mutilated, Destroyed, Lost and Stolen Securities.

 

If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.

 

If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.

 

In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.

 

Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

 

Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.

 

The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.

 

SECTION 307.     Payment of Interest; Interest Rights Preserved.

 

Except as otherwise provided as contemplated by Section 301 with respect to any series of Securities, interest on, or Additional Amounts with respect to, any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment

 

37









 

Date, on or before 10:00 a.m. New York City time, shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.

 

Any interest on, or Additional Amounts with respect to, any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:

 

(1)           The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business (New York time) on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).

 

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

 

Subject to the foregoing provisions of this Section, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

 

38











 

SECTION 308.     Persons Deemed Owners.

 

Prior to due presentment of a Security for registration of transfer, except as required by law the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 307) any interest on, and any Additional Amounts with respect to, such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

 

SECTION 309.     Cancellation.

 

All Securities surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of in accordance with the Trustee’s customary procedures.

 

SECTION 310.     Computation of Interest.

 

Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.

 

SECTION 311.     CUSIP Numbers.

 

The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; 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 an notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.

 

SECTION 312.     Transfer Restrictions; Forms of Transfer Certificates.

 

(1)           No transfer of any beneficial interest in a Restricted Global Security may take place except in accordance with the provisions of this Section 312.

 

39











 

(2)           A beneficial interest in a Restricted Global Security may be transferred to a person who takes delivery in the form of an interest in a Restricted Global Security without furnishing any certificate to the Trustee or a designee of the Trustee.

 

(3)           A beneficial interest in a Regulation S Global Security may be transferred to a person who takes delivery in the form of an interest in a Regulation S Global Security without furnishing any certificate to the Trustee or a designee of the Trustee.

 

(4)           A beneficial interest in a Restricted Global Security may be transferred to a person who takes delivery in the form of a Regulation S Global Security only if the following certificate from the transferor is furnished to the Trustee and/or any person designated by the Trustee to receive such certificates:

 

TRANSFER CERTIFICATE OF RULE 144A SECURITIES TO REGULATION S SECURITIES

 

The undersigned transferor hereby certifies, in connection with its transfer to [name of transferee], transferee, dated [date], of [specify amount] in principal face amount of beneficial interests in [title of Security], currently held by the Depository as a Restricted Global Security, as those terms are defined in the Indenture governing [title of security], that such transfer is being made in accordance with (specify by checkmark):

 

o Rule 903 of Regulation S under the Securities Act;

 

o Rule 904 of Regulation S under the Securities Act;

 

o Rule 144 under the Securities Act

 

This Certificate shall be governed by and construed in accordance with the laws of the State of New York.

 

Executed and dated the date on the face hereof.

 

	
 
    	
[Insert name of transferor]
    
	
 
    	
 
    
	
 
    	
By
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
By
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

(5)           A beneficial interest in a Regulation S Global Security may be transferred to a person who takes delivery in the form of a Restricted Global Security

 

40











 

only if the following certificate from the transferor is furnished to the Trustee and/or any person designated by the Trustee to receive such certificates:

 

TRANSFER CERTIFICATE OF REGULATION S SECURITIES TO RULE 144A SECURITIES

 

The undersigned transferor hereby certifies, in connection with its transfer to [name of transferee], transferee, dated [date], of [specify amount] in principal face amount of beneficial interests in [title of Security], currently held by the Depository as a Regulation S Global Security, as those terms are defined in the Indenture governing [title of security], that such transfer is being made (i) to a person whom the transferor reasonably believes is a qualified institutional buyer as defined in Rule 144A under the Securities Act and (ii) in a transaction meeting the requirements of Rule 144A.

 

This Certificate shall be governed by and construed in accordance with the laws of the State of New York.

 

Executed and dated the date on the face hereof.

 

	
 
    	
[Insert name of transferor]
    
	
 
    	
 
    
	
 
    	
By
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    
	
 
    	
 
    
	
 
    	
By
    	
 
    
	
 
    	
Name:
    	
 
    
	
 
    	
Title:
    	
 
    


 

(6)           Any beneficial interest in one of the Global Securities that is transferred to a person who takes delivery in the form of an interest in another Global Security shall, upon transfer, cease to be an interest in such Global Security and shall become an interest in such other Global Security and, accordingly, shall thereafter be subject to all transfer restrictions and other procedures applicable to beneficial interests in such other Global Security for as long as it remains such an interest.

 

41











 

ARTICLE FOUR

 

SATISFACTION AND DISCHARGE

 

SECTION 401.     Satisfaction and Discharge of Indenture.

 

This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for), with respect to the Securities of any series, and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when

 

(1)           either

 

(A)  all Securities of a series theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or

 

(B)  all such Securities not theretofore delivered to the Trustee for cancellation

 

(1)         have become due and payable, or

 

(2)         will become due and payable at their Stated Maturity within one year, or

 

(3)         are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,

 

and the Company, in the case of (1), (2) or (3) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Company for cancellation, for principal and any premium, and interest and Additional Amounts to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;

 

(2)           the Company has paid or caused to be paid all other sums payable hereunder by the Company; and

 

42











 

(3)           the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.

 

Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 607, the obligations of the Company to any Authenticating Agent under Section 614 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive.

 

SECTION 402.     Application of Trust Money.

 

Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee.

 

ARTICLE FIVE

 

REMEDIES

 

SECTION 501.     Events of Default.

 

“Event of Default”, wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

 

(1)           default in the payment of any interest upon, or Additional Amounts in respect of, any Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days; or

 

(2)           default in the payment of the principal of or any premium on any Security of that series at its Maturity; or

 

(3)           default in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series; or

 

(4)           default in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of series of Securities other than that series), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least

 

43











 

25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or

 

(5)           default by the Company or any Guarantor in the payment of indebtedness of $100,000,000 or more in principal amount outstanding when due after the expiration of any applicable grace period, or default under indebtedness of the Company or any Guarantor of $100,000,000 or more in principal amount resulting in acceleration of such indebtedness, but only if such indebtedness is not discharged or such acceleration is not rescinded or annulled and such default continues for 10 days after written notice of the default is sent to the Company; or

 

(6)           the entry of a decree or order by a court having jurisdiction in the premises adjudging the Company or any Guarantor a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization or winding-up of the Company under the Companies’ Creditors Arrangement Act (Canada), the Bankruptcy Act (Canada) or the Winding-Up Act (Canada) or any other bankruptcy, insolvency or analogous laws, or issuing sequestration or process of execution against the Company or any Guarantor or any substantial part of their respective property, or appointing a receiver of the Company or any Guarantor or of any substantial part of their respective property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order or appointment unstayed, undischarged and in effect for a period of 90 days from the date thereof; or

 

(7)           the institution by the Company or any Guarantor of proceedings to be adjudicated bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under the Companies’ Creditors Arrangement Act (Canada), the Bankruptcy Act (Canada) or the Winding-Up Act (Canada) or any other bankruptcy, insolvency or analogous laws, or the consent by it to the filing of any such petition or to the appointment of a receiver of the Company or of any substantial part of its property, or the making by it of a general assignment for the benefit of creditors, or the Company’s or any Guarantor’s admitting in writing its inability to pay its debts generally as they become due or taking of corporate action by the Company or Guarantor in furtherance of any such action; or

 

(8)           any other Event of Default provided with respect to Securities of that series.

 

SECTION 502.     Acceleration of Maturity; Rescission and Annulment.

 

If an Event of Default (other than an Event of Default specified in Section 501(5) or 501(6)) with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of all series of Securities with respect to which the Event of Default has occurred (voting as a single class) may declare the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) to be due and payable immediately,

 

44











 

by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. If an Event of Default specified in Section 501(6) or 501 (7) with respect to Securities of any series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.

 

At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of all series of Securities with respect to which the Event of Default has occurred (voting as a single class), by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:

 

(1)           the Company has paid or deposited with the Trustee a sum sufficient to pay:

 

(A)               all overdue interest and Additional Amounts on all Securities of that series,

 

(B)               the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,

 

(C)               to the extent that payment of such interest is lawful, interest upon overdue interest and Additional Amounts at the rate or rates prescribed therefor in such Securities, and

 

(D)               all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel;

 

and

 

(2)           all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.

 

No such rescission shall affect any subsequent default or impair any right consequent thereon.

 

45











 

SECTION 503.              Collection of Indebtedness and Suits for Enforcement by Trustee.

 

The Company covenants that if:

 

(1)           default is made in the payment of any interest or Additional Amounts on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or

 

(2)           default is made in the payment of the principal of, or premium, if any, on any Security at the Maturity thereof,

 

the Company shall, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

 

If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

 

SECTION 504.     Trustee May File Proofs of Claim.

 

In case of any judicial proceeding relative to the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to first pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.

 

No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of

 

46











 

the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.

 

SECTION 505.     Trustee May Enforce Claims Without Possession of Securities.

 

All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.

 

SECTION 506.     Application of Money Collected.

 

Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

 

FIRST: To the payment of all amounts due the Trustee under Section 607; and

 

SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and interest on, and any Additional Amounts with respect to, the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and any premium and interest, respectively; and

 

THIRD: To the Company.

 

SECTION 507.       Limitation on Suits.

 

No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless

 

(1)           such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;

 

(2)           the Holders of at least 25% in principal amount of the Outstanding Securities of all series with respect to which the Event of Default has occurred shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

 

47









 

(3)                                 such Holder or Holders have offered to the Trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request;

 

(4)                                 the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and

 

(5)                                 no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of all series with respect to which an Event of Default has occurred;

 

it being understood and intended and being expressly covenanted by the taker and holder of every Security, with every other taker and holder and with the Trustee, that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders), or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.

 

SECTION 508.    Unconditional Right of Holders to Receive Principal, Premium and Interest.

 

Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 307) interest on, and any Additional Amounts with respect to, such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.

 

SECTION 509.              Restoration of Rights and Remedies.

 

If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

 

SECTION 510.              Rights and Remedies Cumulative.

 

Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall,

 

48











 

to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

 

SECTION 511.              Delay or Omission Not Waiver.

 

No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.

 

SECTION 512.              Control by Holders.

 

The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that:

 

(1)                         such direction shall not be in conflict with any rule of law or with this Indenture, and

 

(2)                         the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.

 

SECTION 513.              Waiver of Past Defaults.

 

The Holders of not less than a majority in principal amount of the Outstanding Securities of all series with respect to which a past default has occurred may, on behalf of the Holders of all such Securities, waive any past default hereunder, with respect to such Securities, and its consequences, except a default:

 

(1)                         in the payment of the principal of or any premium or interest on, or any Additional Amounts with respect to, any Security of such series, or

 

(2)                         in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.

 

Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

 

49











 

SECTION 514.              Undertaking for Costs.

 

In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs, including reasonable attorney’s fees and expenses, against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Trustee or by the Company.

 

SECTION 515.              Waiver of Usury, Stay or Extension Laws.

 

The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted.

 

ARTICLE SIX

 

THE TRUSTEE

 

SECTION 601.              Certain Duties and Responsibilities.

 

The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act. Except during the continuance of an Event of Default, the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.

 

50











 

SECTION 602.              Notice of Defaults.

 

If a default occurs hereunder with respect to Securities of any series, the Trustee shall give the Holders of Securities of such series notice of such default as and to the extent provided by the Trust Indenture Act or within 90 days of such occurrence; provided, however, that in the case of any default of the character specified in Section 501(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.

 

SECTION 603.              Certain Rights of Trustee.

 

Subject to the provisions of Section 601:

 

(1)                                 the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

 

(2)                                 any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order, and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution;

 

(3)                                 whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’ Certificate;

 

(4)                                 the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

 

(5)                                 the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

 

(6)                                 the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be

 

51











 

entitled to examine the books, records and premises of the Company, personally or by agent or attorney;

 

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

 

(8)                                 the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;

 

(9)                                 in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;

 

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

 

(11)                               the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;

 

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

 

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

 

SECTION 604.              Not Responsible for Recitals or Issuance of Securities.

 

The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.

 

SECTION 605.              May Hold Securities.

 

The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may

 

52











 

become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.

 

SECTION 606.              Money Held in Trust.

 

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

 

SECTION 607.              Compensation and Reimbursement.

 

The Company agrees

 

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

 

(2)                                 except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or willful misconduct; and

 

(3)                                 to indemnify the Trustee for, and to hold it harmless against, any and all loss, damage, claim, liability or expense including taxes (other than franchise taxes and taxes based upon, measured by or determined by the income of the Trustee) incurred without gross negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the Company, a Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder.

 

The Trustee shall have a lien prior to the Securities as to all property and funds held by it hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 607, except with respect to funds held in trust for the benefit of the Holders of particular Securities.

 

When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Sections 501(6) or 501(7), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or State bankruptcy, insolvency or other similar law.

 

The provisions of this Section shall survive the termination of this Indenture.

 

53











 

SECTION 608.              Conflicting Interests.

 

If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series.

 

SECTION 609.              Corporate Trustee Required; Eligibility.

 

There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

 

SECTION 610.              Resignation and Removal; Appointment of Successor.

 

No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611.

 

The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

 

The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company not less than 30 days prior to the effective date of such removal. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

 

54











 

If at any time:

 

(1)                                 the Trustee shall fail to comply with Section 608 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or

 

(2)                                 the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or by any such Holder, or

 

(3)                                 the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

 

then, in any such case, (A) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or (B) subject to Section 514, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.

 

If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 611, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 611, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

 

The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.

 

55











 

SECTION 611.              Acceptance of Appointment by Successor.

 

In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.

 

In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver a supplemental indenture wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.

 

Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.

 

No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article. The

 

56











 

Trustee shall have no responsibility or liability for any action of inaction of a successor trustee.

 

SECTION 612.              Merger, Conversion, Consolidation or Succession to Business.

 

Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.

 

SECTION 613.              Preferential Collection of Claims Against Company.

 

If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).

 

SECTION 614.              Appointment of Authenticating Agent.

 

The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 306, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.

 

57









 

Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to all or substantially all the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.

 

An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment in the manner provided in Section 106 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.

 

The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.

 

If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:

 

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

	
Dated:
    	
 
    
	
 
    	
 
    
	
 
    	
WELLS FARGO BANK,
    
	
 
    	
NATIONAL ASSOCIATION
    
	
 
    	
 
    
	
 
    	
As Trustee
    
	
 
    	
 
    
	
 
    	
By
    	
 
    
	
 
    	
As   Authenticating Agent
    
	
 
    	
 
    
	
 
    	
By
    	
 
    
	
 
    	
Authorized   Signatory
    
	
 
    	
 
    


 

58











 

ARTICLE SEVEN

 

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

 

SECTION 701.              Company to Furnish Trustee Names and Addresses of Holders.

 

The Company shall furnish or cause to be furnished to the Trustee:

 

(1)                                 not later than seven Business Days after each record date for the payment of interest on the Securities of each series, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each series, and

 

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

 

excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar.

 

SECTION 702.              Preservation of Information; Communications to Holders.

 

The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished.

 

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

 

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

 

SECTION 703.              Reports by Trustee.

 

The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within sixty days after each May 15 following the date of the initial issuance of Securities under this Indenture, deliver to Holders a brief report, dated as of such May 15, which complies with the provisions of such Section 313(a).

 

A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with

 

59











 

the Commission and with the Company. The Company shall promptly notify the Trustee in writing when any Securities are listed on any stock exchange, and of any delisting thereof.

 

SECTION 704.              Reports by Company.

 

The Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as it may be required to provide pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act.

 

The Company shall file with the Trustee, within 30 days after such reports or information is filed with the SEC, copies, which may be in electronic format, of its annual report and the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulation prescribe) which the Company files with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act and does not otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rule and regulations promulgated by the SEC, it will continue to provide the Trustee (i) annual reports containing audited financial statements and (ii) quarterly reports for the first three quarters of each fiscal year containing unaudited financial information, in each case in accordance with Canadian disclosure requirements and GAAP.

 

Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).

 

ARTICLE EIGHT

 

CONSOLIDATION, AMALGAMATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

 

SECTION 801.              Company May Consolidate, Etc., Only on Certain Terms.

 

The Company shall not consolidate or amalgamate with or merge into or enter into any statutory arrangement with any other Person or, directly or indirectly, convey, transfer or lease all or substantially all of its properties and assets to any Person, and the Company shall not permit any Person to consolidate or amalgamate with or merge into or enter into any statutory arrangement with the Company or convey, transfer or lease all or substantially all of its properties and assets as an entirety to the Company, unless:

 

(1)                                 the person formed by or continuing from such consolidation or amalgamation or into which the Company is merged or with which the Company enters into such statutory arrangement or the person which acquires or leases all or substantially all of the Company’s properties and assets is organized and existing

 

60











 

under the laws of the United States, any state thereof or the District of Columbia or the laws of Canada or any province or territory thereof;

 

(2)                                 the successor Person expressly assumes or assumes by operation of law all of the Company’s obligations under its debt securities, including the Securities, and under this Indenture;

 

(3)                                 immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or any Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing; and

 

(4)                                 the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.

 

SECTION 802.              Successor Substituted.

 

Upon any consolidation or amalgamation of the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with Section 801, the successor Person formed by such consolidation or amalgamation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities.

 

SECTION 803.              Securities to be Secured in Certain Events.

 

If, as a result of any such transaction, any of the Company’s Principal Properties becomes subject to a Lien, then, unless such Lien could be created pursuant to Section 1008 of this Indenture without equally and ratably securing any Securities to which Section 1008 applies, the Company, simultaneously with or prior to such transaction, will cause such Securities to be secured equally and ratably with or prior to the Indebtedness secured by such Lien.

 

61











 

ARTICLE NINE

 

SUPPLEMENTAL INDENTURES

 

SECTION 901.              Supplemental Indentures Without Consent of Holders.

 

Without the consent of any Holders, the Company and the Trustee, at any time and from time to time, may amend or supplement this Indenture or the Securities or waive any provision hereof or thereof for any of the following purposes:

 

(1)                                 to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities; or

 

(2)                                 to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or

 

(3)                                 to add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or

 

(4)                                 to add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of Securities in uncertificated form; or

 

(5)                                 to add to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination shall not apply to any Security of any series created prior to the execution of such supplemental indenture that is adversely affected in any material respect by such addition, change or elimination of provision; provided, further, that any change made solely to conform the provisions of this Indenture to the description of any Security in an offering document or prospectus supplement will be deemed not to adversely affect any Security of any series in any material respect; or

 

(6)                                 to secure any series of the Securities or provide for any guarantees thereof, additional Guarantors thereon, or additional obligors thereon;

 

(7)                                 to establish the form or terms of Securities of any series as permitted by Sections 201 and 301; or

 

(8)                                 to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or

 

62









 

facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611; or

 

(9)                           to comply with any requirement in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act; or

 

(10)                          to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Section 401 or Article Thirteen; provided, however, that any such action shall not adversely affect the interest of the Holders of Securities of such series or any other series of Securities in any material respect; or

 

(11)                          to cure any ambiguity, omission, defect or inconsistency in this Indenture.

 

Upon the request of the Company, accompanied by a Board Resolution and upon receipt by the Trustee of the documents described in Section 903, the Trustee shall, subject to Section 903, join with the Company in the execution of any supplemental indenture authorized or permitted by the terms of this Indenture and make any further appropriate agreements and stipulations that may be therein contained.

 

SECTION 902.              Supplemental Indentures With Consent of Holders.

 

With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company and the Trustee may enter into an indenture or supplemental indentures for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,

 

(1)                                 change the Stated Maturity of, the principal of, or any installment of principal of or interest or Additional Amounts on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of a Security which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or change any Place of Payment where, or the coin or currency in which, any Security or any premium, interest or Additional Amounts thereon are payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or

 

(2)                                 reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or

 

63











 

(3)                                 modify any of the provisions of this Section or Section 513, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the deletion of this proviso, in accordance with the requirements of Sections 611 and 901(8).

 

A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.

 

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

 

Upon the request of the Company, accompanied by a Board Resolution, and upon the filing with the Trustee of evidence of the consent of the Holders as aforesaid, and upon receipt by the Trustee of the documents described in Section 903, the Trustee shall, subject to Section 903, join with the Company in the execution of such amendment or supplemental indenture.

 

SECTION 903.              Execution of Supplemental Indentures.

 

In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall receive, and (subject to Section 601) shall be fully protected in conclusively relying upon, an Officers’ Certificate and on an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and is the legal, valid and binding obligation of the Company. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

 

SECTION 904.              Effect of Supplemental Indentures.

 

Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

 

SECTION 905.              Conformity with Trust Indenture Act.

 

Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.

 

64











 

SECTION 906.              Reference in Securities to Supplemental Indentures.

 

Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.

 

ARTICLE TEN

 

COVENANTS

 

SECTION 1001.       Payment of Principal, Premium, Interest and Additional Interest.

 

The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of and any premium and interest (including any Additional Interest) on the Securities of that series in accordance with the terms of the Securities and this Indenture.

 

SECTION 1002.       Maintenance of Office or Agency.

 

The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

 

The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.

 

SECTION 1003.       Money for Securities Payments to Be Held in Trust.

 

If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of or any premium or interest on, and Additional Amounts with respect to, any of the Securities of that

 

65











 

series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.

 

Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to each due date of the principal of or any premium or interest on, and any Additional Amounts with respect to, any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.

 

The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (1) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the continuance of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.

 

The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.

 

Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or any premium or interest on, and any Additional Amounts with respect to, any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in each of New York City and Toronto, Ontario, Canada, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.

 

66











 

SECTION 1004.       Statement by Officers as to Default.

 

The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officers’ Certificate, stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.

 

SECTION 1005.       Existence.

 

Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Holders.

 

SECTION 1006.       Additional Amounts.

 

If applicable to Securities of any series, all payments made by or on behalf of the Company under or with respect to the Securities of such series (or by any Guarantor with respect to any Guarantee of such Securities) will be made free and clear of, and without withholding or deduction for or on account of, any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively “Taxes”) imposed or levied by or on behalf of the Government of Canada or any province or territory thereof or any other jurisdiction in which the Company or any Guarantor is organized or any political subdivision thereof or any authority or agency therein or thereof having power to tax (each, a “Relevant Taxing Jurisdiction”), unless the Company or a Guarantor is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the Relevant Taxing Jurisdiction.

 

If the Company or a Guarantor is so required to withhold or deduct any amount for, or on account of, Taxes from any payment made under or with respect to the Securities or Guarantees, the Company or the relevant Guarantor, as the case may be, will pay to each holder of Securities as additional interest such additional amounts (“Additional Amounts”) as may be necessary so that the net amount received by each such holder after such withholding or deduction will not be less than the amount such holder would have received if such Taxes had not been required to be withheld or deducted; provided, however, that the foregoing obligation to pay Additional Amounts shall not apply to:

 

(1)                                 any Taxes that would not have been so imposed but for the existence of any present or former connection between the relevant holder (or between a fiduciary, settlor, beneficiary, partner, member or shareholder of, the relevant holder, if the relevant holder is an estate, nominee, trust, partnership, limited liability company or corporation) and the Relevant Taxing Jurisdiction other than the receipt

 

67











 

of such payment or the ownership or holding of or the execution, delivery, registration or enforcement of such Note;

 

(2)                                 any payments to any holder where such holder did not deal at arm’s length (within the meaning of the Tax Act) with the Company or any Guarantor at the time of making a payment under or with respect to the Securities or Guarantee;

 

(3)                                 any estate, inheritance, gift, sales, excise, transfer, personal property tax or similar tax, assessment or governmental charge;

 

(4)                                 any Taxes that are payable otherwise than by deduction or withholding from a payment of principal, premium, interest, Additional Interest, or Additional Amounts on the Securities;

 

(5)                                 any Taxes that would not have been so imposed but for the presentation of such Securities (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever is later, except to the extent that the beneficiary or holder thereof would have been entitled to Additional Amounts had the Securities been presented for payment on the last date during such 30-day period;

 

(6)                                 any Taxes that would not have been so imposed or would have been imposed at a lower rate if the holder of the Security had provided to the Company or the Guarantor, as applicable, any information, certification, documentation or evidence required under applicable law, rules, regulations or generally published administrative practice of the Relevant Taxing Jurisdiction for such Taxes not to be imposed or to be imposed at a lower rate (provided that such information, certification, documentation or evidence is required by the applicable law, rules, regulations or generally published administrative practice of the Relevant Taxing Jurisdiction as a precondition to exemption from or reduction in the requirement to deduct or withhold all or part of such Taxes and such information, certification, documentation or evidence is reasonably requested upon reasonable notice by the applicable payor);

 

(7)                                 any Taxes that were imposed on a fiduciary, partnership or other entity that is not the sole beneficial owner of the payment, and the laws of the Relevant Taxing Jurisdiction require the payment to be included in the income for tax purposes of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or beneficial owner who would not have been entitled to such Additional Amounts had it been the holder; or

 

(8)                                 any Taxes that would not have been so imposed but for any combination of the foregoing.

 

The Company or the relevant Guarantor will (i) make such withholding or deduction of Taxes as is required under applicable law or the interpretation or administration thereof by the Relevant Taxing Jurisdiction, (ii) remit the full amount deducted or withheld to the Relevant Taxing Jurisdiction in accordance with applicable law and (iii)

 

68











 

furnish to the Trustee evidence that the payment of any Taxes so deducted or withheld from each Relevant Taxing Jurisdiction imposing such Taxes, such evidence limited to (a) the amount remitted to the Relevant Taxing Jurisdiction, (b) the date such amount was remitted to the Relevant Taxing Jurisdiction, (c) the name of the Relevant Taxing Jurisdiction that imposed or levied the Taxes, and (d) a description of the Taxes for which the payment was remitted.

 

If the Company or a Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Company or such Guarantor will promptly deliver to the Trustee and paying agent an Officer’s Certificate stating the fact that such Additional Amounts will be payable and the amounts so payable and will set forth such other information necessary to enable the payment of such Additional Amounts to holders of Securities on the payment date. Each such Officer’s Certificate shall be relied upon until receipt of a new officer’s certificate addressing such matters. The Trustee shall have no obligation to determine or obtain knowledge of when Additional Amounts are paid or owed.

 

Wherever in the Indenture there is mentioned, in any context, the payment of principal (and premium, if any), interest, including any Additional Interest, or any other amount payable under or with respect to the Securities, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section 1006 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section 1006 and express mention of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.

 

SECTION 1007.       Waiver of Certain Covenants.

 

Except as otherwise specified as contemplated by Section 301 for Securities of such series, the Company may, with respect to the Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in Sections 803, 1005 or 1008 or in any covenant provided pursuant to Section 301(18), 901(2) or 901(7) for the benefit of the Holders of such series if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of all series with respect to which the waiver applies (voting as a single class) shall, by Act of such Holders, either waive in writing such compliance in such instance or generally waive in writing compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.

 

SECTION 1008.       Negative Pledge.

 

If applicable to any series of Securities, the Company shall not, and shall not permit any Restricted Subsidiary to, create, incur, issue, assume or otherwise have outstanding any Lien on or over any Principal Property now owned or hereafter acquired by the Company or a Restricted Subsidiary to secure any Indebtedness, or on shares of stock or Indebtedness of any Restricted Subsidiary now owned or hereafter acquired by

 

69











 

the Company or a Restricted Subsidiary to secure any Indebtedness, unless at the time thereof or prior thereto all Securities then outstanding to which this Section 1008 applies (together with, if and to the extent the Company so determines, any other Indebtedness then existing or thereafter created), are secured equally and ratably with (or prior to) any and all such Indebtedness for so long as such Indebtedness is so secured by such Lien; provided, however, that this covenant shall not apply to or operate to prevent or restrict the following permitted Liens:

 

(1)                                 any Lien on property, shares of stock or Indebtedness of any Person existing at the time such Person becomes a Restricted Subsidiary or created, incurred, issued or assumed in connection with the acquisition of any such Person;

 

(2)                                 any Lien on any Principal Property created, incurred, issued or assumed at or prior to the time such property became a Principal Property or existing at the time of acquisition of such Principal Property by the Company or a Restricted Subsidiary, whether or not assumed by the Company or such Restricted Subsidiary; provided that no such Lien will extend to any other Principal Property of the Company or any Restricted Subsidiary;

 

(3)                                 any Lien on any Principal Property of any Restricted Subsidiary to secure Indebtedness owing by it to the Company or to another Restricted Subsidiary;

 

(4)                                 any Lien on any Principal Property of the Company to secure Indebtedness owing by it to a Restricted Subsidiary;

 

(5)                                 any Lien on any Principal Property or other assets of the Company or any Restricted Subsidiary existing on the date of the indenture, or arising thereafter pursuant to contractual commitments entered into prior to the date of this Indenture;

 

(6)                                 any Lien on all or any part of any Principal Property (including any improvements or additions to improvements on a Principal Property), or on any shares of stock or Indebtedness of any Restricted Subsidiary directly or indirectly owning or operating such Principal Property, where such Principal Property is hereafter acquired, developed, expanded or constructed by the Company or any Subsidiary, to secure the payment of all or any part of the purchase price, cost of acquisition or any cost of development, expansion or construction of such Principal Property or of improvements or additions to improvements thereon (or to secure any Indebtedness incurred by the Company or a Subsidiary for the purpose of financing all or any part of the purchase price, cost of acquisition or cost of development, expansion or construction thereof or of improvements or additions to improvements thereon), in each case including interest thereon and fees and expenses, including premiums, associated therewith, created prior to, at the time of, or within 360 days after the later of, the acquisition, development, expansion or completion of construction (including construction of improvements or additions to improvements thereon), or commencement of full operation of such Principal Property; provided that no such Lien will extend to any other Principal Property of the Company or a Restricted Subsidiary other than in the case of any such construction, improvement, development, expansion or addition to improvement, all or any part of any other

 

70











 

Principal Property on which the Principal Property so constructed, developed or expanded, or the improvement or addition to improvement, is located;

 

(7)                                 any Lien on any Principal Property or other assets of the Company or any Restricted Subsidiary created for the sole purpose of extending, renewing, altering or refunding any of the foregoing Liens, provided that the Indebtedness secured thereby will not exceed the principal amount of Indebtedness so secured at the time of such extension, renewal, alteration or refunding, plus an amount necessary to pay fees and expenses, including premiums, related to such extensions, renewals, alterations or refundings, and that such extension, renewal, alteration or refunding Lien will be limited to all or any part of the same Principal Property and improvements and additions to improvements thereon and/or shares of stock and Indebtedness of a Restricted Subsidiary which secured the Lien extended, renewed, altered or refunded or either of such property or shares of stock or Indebtedness; and

 

(8)                                 any Lien on any Principal Property or on any shares of stock or Indebtedness of any Restricted Subsidiary created, incurred, issued or assumed to secure Indebtedness of the Company or any Restricted Subsidiary which would otherwise be subject to the foregoing restrictions, in an aggregate amount which, together with the aggregate principal amount of other Indebtedness secured by Liens on any Principal Property or on any shares of stock or Indebtedness of any Restricted Subsidiary then outstanding (excluding Indebtedness secured by Liens permitted under the foregoing exceptions) would not then exceed 10% of Consolidated Net Tangible Assets.

 

For purposes of the foregoing, the giving of a guarantee that is secured by a Lien on a Principal Property or on shares of stock or Indebtedness of any Restricted Subsidiary, and the creation of a Lien on a Principal Property or on shares of stock or Indebtedness of any Restricted Subsidiary to secure Indebtedness that existed prior to the creation of such Lien, will be deemed to involve the creation of Indebtedness in an amount equal to the principal amount guaranteed or secured by such Lien but the amount of Indebtedness secured by Liens on any Principal Property and shares of stock and Indebtedness of Restricted Subsidiaries will be computed without cumulating the underlying Indebtedness with any guarantee thereof or Lien securing the same.

 

ARTICLE ELEVEN

 

REDEMPTION OF SECURITIES

 

SECTION 1101.       Applicability of Article.

 

Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified, as contemplated by Section 301 for such Securities) in accordance with this Article.

 

SECTION 1102.       Election to Redeem; Notice to Trustee.

 

The election of the Company to redeem any Securities shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 301 for such

 

71











 

Securities. In case of any redemption at the election of the Company of the Securities of any series (including any such redemption affecting only a single Security), the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction.

 

SECTION 1103.       Selection by Trustee of Securities to Be Redeemed.

 

If less than all the Securities of any series are to be redeemed (unless all the Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of a portion of the principal amount of any Security of such series, provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. If less than all the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence.

 

The Trustee shall promptly notify the Company in writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.

 

The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.

 

For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.

 

SECTION 1104.       Notice of Redemption.

 

Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his address appearing in the Security Register.

 

72









 

All notices of redemption shall state:

 

(1)    the Redemption Date,

 

(2)    the Redemption Price,

 

(3)    if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed,

 

(4)    that on the Redemption Date the Redemption Price shall become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon shall cease to accrue on and after said date,

 

(5)    the place or places where each such Security is to be surrendered for payment of the Redemption Price,

 

(6)    that the redemption is for a sinking fund, if such is the case,

 

(7)    the CUSIP number, if any, relating to such Securities, and

 

(8)    if the redemption or notice thereof is subject to one or more conditions, a statement to such effect and the condition or conditions precedent.

 

Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s written request, by the Trustee in the name and at the expense of the Company and shall be irrevocable.

 

SECTION 1105.       Deposit of Redemption Price.

 

On or before 10:00 a.m., New York City time, on the Redemption Date, the Company shall deposit with the Trustee an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.

 

SECTION 1106.       Securities Payable on Redemption Date.

 

Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued and unpaid interest to, but not including the Redemption Date; provided, however, that, unless otherwise specified as contemplated by Section 301, installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to

 

73











 

the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307.

 

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.

 

SECTION 1107.       Securities Redeemed in Part.

 

Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.

 

SECTION 1108.       Change of Control Repurchase Event.

 

If applicable to any series of Security, upon the occurrence of a Change of Control Repurchase Event, unless the Company has exercised its right to redeem the Securities of that series as set forth in this Article Eleven, the Company shall make an offer to each holder of the Securities of each such series to repurchase all or any part (in multiples of $1,000 with no Security of a principal amount of $2,000 or less purchased in part) of that holder’s Securities of that series at a repurchase price in cash equal to 101% of the aggregate principal amount of the Securities repurchased plus any accrued and unpaid interest on the Securities repurchased to, but not including, the date of repurchase.

 

Within 45 days following any Change of Control Repurchase Event or, at the Company’s option, prior to any Change of Control but after the public announcement of the Change of Control, the Company shall mail a notice to each holder of Securities of each such series, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Repurchase Event and offering to repurchase the Change of Control Repurchase Securities on the payment date specified in the notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed, other than as may be required by law. The notice shall, if mailed prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on a Change of Control occurring on or prior to the payment date specified in the notice.

 

The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the Change of Control Repurchase Securities as a result of a Change of Control Repurchase Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control Repurchase Event provisions of the Change of Control Repurchase

 

74











 

Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations under the Change of Control Repurchase Event provisions of such Securities by virtue of such conflict.

 

On the repurchase date following a Change of Control Repurchase Event, the Company shall, to the extent lawful:

 

(1)    accept for payment all Change of Control Repurchase Securities or portions of such Securities properly tendered pursuant to the Company’s offer;

 

(2)    deposit with the Trustee or the paying agent, as applicable, an amount equal to the aggregate purchase price in respect of all Change of Control Repurchase Securities or portions of such Securities properly tendered; and

 

(3)    deliver or cause to be delivered to the Trustee or paying agent, as applicable, the Change of Control Repurchase Securities properly accepted, together with an Officers’ Certificate stating the aggregate principal amount of the Notes being purchased by the Company.

 

The Trustee or the paying agent, as applicable, shall promptly pay to each holder of the Change of Control Repurchase Securities properly tendered the purchase price for such Securities, and the Trustee shall promptly authenticate and deliver to each holder a new Security equal in principal amount to any unpurchased portion of any Change of Control Repurchase Security surrendered; provided that each new Security shall be in a minimum principal amount of $2,000 and integral multiples of $1,000 in excess thereof.

 

The Company shall not be required to make an offer to repurchase any Change of Control Repurchase Securities upon a Change of Control Repurchase Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company, and such third party purchases all Securities properly tendered and not withdrawn under its offer.

 

The foregoing provisions of this Section may be waived or modified with the written consent of the holders of a majority in principal amount of the Securities of any series which, in accordance with its terms, is subject to this Section.

 

SECTION 1109.       Tax Redemption.

 

The Securities shall be subject to redemption at any time, in whole but not in part, at a redemption price equal to 100% of the principal amount thereof together with accrued and unpaid interest to, but not including, the date fixed for redemption, upon the giving of a notice as described below, if the Company determines that:

 

(1)    as a result of (A) any change in or amendment to the laws (or any regulations or rulings promulgated thereunder) of Canada (or the jurisdiction of organization of the Company’s successor) or of any political subdivision or taxing authority thereof or therein affecting taxation, or (B) any change in the application or interpretation of such laws, regulations or rulings by any legislative body, court, governmental agency or regulatory authority (including a holding by a court of

 

75











 

competent jurisdiction) of a Relevant Taxing Jurisdiction, which change or amendment is announced or becomes effective on or after the later of (i) the date of the offering document of any such Securities, or (ii) if applicable, the date a party organized in a jurisdiction other than Canada becomes the Company’s successor, the Company or such successor, as applicable, has or will become obligated to pay, on the next succeeding date on which interest is due, Additional Amounts with respect to any Security of that series; or

 

(2)    on or after the later of (i) the date of the offering document for any such series of Securities, or (ii) if applicable, the date a party organized in a jurisdiction other than Canada becomes the Company’s successor, any action has been taken by any taxing authority of, or any decision has been rendered by a court of competent jurisdiction in, Canada (or the jurisdiction of organization of the Company’s successor) or any political subdivision or taxing authority thereof or therein, including any of those actions specified in Section 1109(1), whether or not such action was taken or such decision was rendered with respect to the Company or such successor, as applicable, or any change, amendment, application or interpretation will be officially proposed, which, in any such case, in the Opinion of Counsel, will result in the Company, or the successor, as applicable, becoming obligated to pay, on the next succeeding date on which interest is due, Additional Amounts with respect to any Security of that series,

 

and, in any such case, the Company determines that such obligation cannot be avoided by the use of reasonable measures available to it (which shall not include the substitution of an obligor in respect of the Securities).

 

In the event that the Company elects to redeem the Securities of any series pursuant to the provisions set forth in this Section, the Company will deliver to the Trustee an Officers’ Certificate, stating that it is entitled to redeem such Securities pursuant to the terms of this Section.

 

Notice of intention to redeem the Securities as provided above will be given not more than 60 nor less than 30 days prior to the date fixed for redemption and will specify the date fixed for redemption.

 

ARTICLE TWELVE

 

SINKING FUNDS

 

SECTION 1201.       Applicability of Article.

 

The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated by Section 301 for such Securities.

 

The minimum amount of any sinking fund payment provided for by the terms of any Securities is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of such Securities is herein referred to as an “optional sinking fund payment”. If provided for by the terms

 

76











 

of any Securities, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities as provided for by the terms of such Securities.

 

SECTION 1202.       Satisfaction of Sinking Fund Payments with Securities.

 

The Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities as and to the extent provided for by the terms of such Securities; provided that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as specified in the Securities so to be redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.

 

SECTION 1203.       Redemption of Securities for Sinking Fund.

 

Not less than ten days prior to each sinking fund payment date for any Securities, the Company shall deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 1202 and shall also deliver to the Trustee any Securities to be so delivered. Not less than two days prior to each such sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.

 

ARTICLE THIRTEEN

 

DEFEASANCE AND COVENANT DEFEASANCE

 

SECTION 1301.       Company’s Option to Effect Defeasance or Covenant Defeasance.

 

The Company may elect, at its option at any time, to have Section 1302 or Section 1303 applied to any Securities or any series of Securities, as the case may be, designated pursuant to Section 301 as being defeasible pursuant to such Section 1302 or 1303, in accordance with any applicable requirements provided pursuant to Section 301 and upon compliance with the conditions set forth below in this Article. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 301 for such Securities.

 

77











 

SECTION 1302.       Defeasance and Discharge.

 

Upon the Company’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, the Company shall be deemed to have been discharged from its obligations with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter called “Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 1304 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on, and any Additional Amounts with respect to, such Securities when payments are due, (2) the Company’s obligations with respect to such Securities under Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article. Subject to compliance with this Article, the Company may exercise its option (if any) to have this Section applied to any Securities notwithstanding the prior exercise of its option (if any) to have Section 1303 applied to such Securities.

 

SECTION 1303.       Covenant Defeasance.

 

Upon the Company’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case may be, (1) the Company shall be released from its obligations under Article 8 and Sections 1005 and 1008 and any covenants provided pursuant to Sections 301(18), 901(2) or 901(7) for the benefit of the Holders of such Securities and (2) the occurrence of any event specified in Section 501(4) (with respect to any of Article 8, Sections 1005 and 1008 and any such covenants provided pursuant to Section 301(18), 901(2) or 901(7) and 501(8)) shall be deemed not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Sections 501(4) and 1008), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.

 

SECTION 1304.       Conditions to Defeasance or Covenant Defeasance.

 

The following shall be the conditions to the application of Section 1302 or Section 1303 to any Securities or any series of Securities, as the case may be:

 

(1)    The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by

 

78











 

Section 609 and agrees to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefits of the Holders of such Securities, (A) money in an amount, or (B) Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms shall provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and any premium and interest on, and any Additional Amounts with respect to, such Securities on the respective Stated Maturities, in accordance with the terms of this Indenture and such Securities.

 

(2)    In the event of an election to have Section 1302 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel stating in respect of U.S. Federal income tax that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this instrument, there has been a change in the applicable U.S. Federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of such Securities will not recognize gain or loss for U.S. Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to U.S. Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur. In the event of an election to have Section 1302 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel or ruling from the Canada Revenue Agency to the effect that Holders of such Securities will not recognize income, gain or loss for Canadian federal, provincial or territorial income and other Canadian tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to Canadian federal, provincial or territorial and other Canadian income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit, Defeasance and discharge had not occurred (and for the purposes of such Canadian Opinion of Counsel, counsel will assume that holders of such securities include holders who are not resident in Canada).

 

(3)    In the event of an election to have Section 1303 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel or ruling from the Canada Revenue Agency to the effect that the Holders of such Securities will not recognize income, gain or loss for Canadian federal, provincial or territorial income and other Canadian tax purposes or for U.S. Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities and will be subject to Canadian federal, provincial or territorial income and other Canadian tax and U.S. Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and Covenant Defeasance had not occurred (and for the purposes of such Canadian Opinion of Counsel, counsel will

 

79











 

assume that holders of such securities include holders who are not resident in Canada).

 

(4)    The Company shall have delivered to the Trustee an Officers’ Certificate to the effect that neither such Securities nor any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit.

 

(5)    No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 501(5) and (6), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day).

 

(6)    The Company is not an “insolvent person” within the meaning of the Bankruptcy and Insolvency Act (Canada) on the date of such deposit and after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally.

 

(7)    Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act).

 

(8)    Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound.

 

(9)    Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder.

 

(10)  The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.

 

SECTION 1305.       Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions.

 

Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section and Section 1306, the Trustee and any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 1304 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and

 

80











 

interest, but money so held in trust need not be segregated from other funds except to the extent required by law.

 

The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 1304 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.

 

Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Obligations held by it as provided in Section 1304 with respect to any Securities which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.

 

SECTION 1306.       Reinstatement.

 

If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company has been discharged or released pursuant to Section 1302 or 1303 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 1305 with respect to such Securities in accordance with this Article; provided, however, that if the Company makes any payment of principal of or any premium or interest on, or any Additional Amounts with respect to, any such Security following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.

 

ARTICLE FOURTEEN

 

GUARANTEE OF GUARANTEED SECURITIES

 

SECTION 1401.       Guarantee.

 

Each Guarantor hereby unconditionally and irrevocably guarantees to each Holder of a Guaranteed Security of each series authenticated and delivered by the Trustee on behalf of each such Holder, the due and punctual payment of the principal of, premium, if any, and interest on such Guaranteed Security, the due and punctual payment of any Additional Amounts that may be payable with respect to such Guaranteed Security, and the due and punctual payment of the sinking fund or analogous payments referred to therein, if any, when and as the same shall become due and payable, whether on the Stated Maturity, by declaration of acceleration, call for redemption or otherwise, according to the terms thereof and of this Indenture. In case of the failure of the Company punctually to make any such payment of principal, premium, if any, or interest,

 

81











 

or any Additional Amounts that may be payable with respect to any Guaranteed Security, or any such sinking fund or analogous payment, each Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether on the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, and as if such payment were made by the Company.

 

Each Guarantor hereby agrees that its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any Guaranteed Security or this Indenture, any failure to enforce the provisions of any Guaranteed Security or this Indenture, or any waiver, modification or indulgence granted to the Company with respect thereto or hereto, by the Holder of any Security or the Trustee or any other circumstance which may otherwise constitute a legal or equitable discharge of a surety or guarantor; provided, however, that, notwithstanding the foregoing, no such waiver, modification or indulgence shall, without the consent of each Guarantor, increase the principal amount of any Guaranteed Security, or increase the interest rate thereon, or increase any premium payable upon redemption thereof, or alter the Stated Maturity thereof. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a proceeding first against the Company, protest or notice with respect to any Guaranteed Security or the indebtedness evidenced thereby or with respect to any Additional Amounts that may be payable with respect to such Guaranteed Security or any sinking fund or analogous payment required under any Guaranteed Security and all demands whatsoever, and covenants that its obligations under this Article Fourteen and the Guarantees will not be discharged except by payment in full of the principal of, premium, if any, and interest on and any Additional Amounts that may be payable with respect to the Guaranteed Securities.

 

Each Guarantor shall be subrogated to all rights of the Holder of any Guaranteed Security and the Trustee against the Company in respect of any amounts paid to such Holder by each Guarantor pursuant to the provisions of this Article Fourteen and its Guarantee of such Security; provided, however, that no Guarantor shall be entitled to enforce or to receive any payments arising out of or based upon such right of subrogation until the principal of, premium, if any, and interest on all Guaranteed Securities of the same series issued under this Indenture and any Additional Amounts with respect to such Guaranteed Securities shall have been paid in full.

 

Any term or provision of this Indenture to the contrary notwithstanding, the maximum aggregate amount of the Guaranteed Securities guaranteed hereunder by any Guarantor shall not exceed the maximum amount that can be hereby guaranteed by the applicable Guarantor without rendering the Guarantee, as it relates to the Guarantor, voidable under applicable law relating to fraudulent conveyance, fraudulent transfer, corporate benefit, financial assistance or similar laws affecting the rights of creditors generally.

 

SECTION 1402.       Execution and Delivery of Guarantees.

 

The Guarantees to be endorsed on the Guaranteed Securities of each series shall include the terms of the guarantees set forth in Section 1401 and any other terms that may

 

82









 

be set forth in the form established pursuant to Section 206 with respect to such series. Each Guarantor hereby agrees to execute the Guarantees, in a form established pursuant to Section 206, to be endorsed on each Guaranteed Security authenticated by the Trustee.

 

The Guarantees shall be executed on behalf of each Guarantor by an authorized signatory of the Guarantor. The signature of any authorized signatory on the Guarantees may be manual or facsimile signatures of the present or any future such authorized officer and may be imprinted or otherwise reproduced on the Guarantees.

 

Guarantees bearing the manual or facsimile signatures of individuals who were at any time the proper signatories of the Guarantor shall bind the Guarantor, notwithstanding that such individuals or any of them have ceased to have such authority prior to the authentication and delivery of the Securities on which such Guarantees are endorsed or did not have such authority at the date of such Securities.

 

The delivery of any Guaranteed Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee endorsed thereon on behalf of the Guarantor. Each Guarantor hereby agrees that its Guarantee set forth in Section 1401 shall remain in full force and effect notwithstanding any failure to endorse a Guarantee on any Guaranteed Security.

 

SECTION 1403. Additional Guarantees.

 

If any Subsidiary shall be a Credit Agreement Guarantor at a time when such Subsidiary is not a Guarantor, the Company shall cause such Subsidiary to execute a Supplemental Indenture pursuant to which such Subsidiary shall become a Guarantor hereunder.

 

SECTION 1404. Release of Guarantees.

 

A Guarantor will be released and relieved of its obligations under its Guarantee in respect of the Guaranteed Securities, and such Guarantee will be terminated, upon Company Order (i) if the Guarantor is no longer a Credit Agreement Guarantor or will be released and relieved of its obligations under the Credit Agreement concurrently with the release of the Guarantee, and (ii) upon satisfaction and discharge, defeasance or covenant defeasance under the terms of this Indenture.

 

ARTICLE FIFTEEN

 

MISCELLANEOUS PROVISIONS

 

SECTION 1501. Consent to Jurisdiction and Service of Process.

 

The Company and each Non-U.S. Guarantor irrevocably submits to the jurisdiction of any New York State or Federal court sitting in The City of New York over any suit, action or proceeding arising out of or relating to this Indenture or any Security. The Company and each Non-U.S. Guarantor irrevocably waives, to the fullest extent permitted by law, any objection which it may have to the laying of the venue of any such suit, action or proceeding brought in such a court and any claim that any such suit, action

 

83











 

or proceeding brought in such a court has been brought in any inconvenient forum. The Company and each Non-U.S. Guarantor agrees that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding upon the Company and each Non-U.S. Guarantor, as the case may be, and may be enforced in the courts of Canada (or any other courts to the jurisdiction of which the Company or the relevant Non-U.S. Guarantor is subject) by a suit upon such judgment, provided that service of process is effected upon the Company and each Non-U.S. Guarantor in the manner specified in the following paragraph or as otherwise permitted by law; provided, however, that the Company and each Non-U.S. Guarantor does not waive, and the foregoing provisions of this sentence shall not constitute or be deemed to constitute a waiver of, (i) any right to appeal any such judgment, to seek any stay or otherwise to seek reconsideration or review of any such judgment or (ii) any stay of execution or levy pending an appeal from, or a suit, action or proceeding for reconsideration or review of, any such judgment.

 

As long as any of the Securities remain outstanding, the Company and each Non-U.S. Guarantor will each at all times have an authorized agent in the Borough of Manhattan, The City of New York upon whom process may be served in any legal action or proceeding arising out of or relating to the Indenture, any Security or any Guarantee on any Security. Service of process upon such agent and written notice of such service mailed or delivered to the Company or the relevant Non-U.S. Guarantor shall to the extent permitted by law be deemed in every respect effective service of process upon the Company or the relevant Non-U.S. Guarantor in any such legal action or proceeding. The Company and each Non-U.S. Guarantor hereby appoint CT Corporation System as its agent for such purpose, and covenants and agrees that service of process in any such legal action or proceeding may be made upon it at the office of such agent at 111 Eighth Avenue, 13th Floor, New York, New York 10011 (or at such other address or addresses in the Borough of Manhattan, The City of New York, as (i) the Company may designate to the Trustee for itself, (ii) the Company may designate to the Trustee for any Non-U.S. Guarantor which is a Subsidiary and (iii) any Non-U.S. Guarantor may designate to the Trustee for itself, in each case in writing).

 

The Company and each Non-U.S. Guarantor hereby consent to process being served in any suit, action or proceeding of the nature referred to in the preceding paragraphs by service upon such agent together with the mailing of a copy thereof by registered or certified mail, postage prepaid, return receipt requested, to the address of the Company set forth in the first paragraph of this instrument or to any other address of which the Company or such Non-U.S. Guarantor shall have given written notice to the Trustee. The Company and each Non-U.S. Guarantor irrevocably waives, to the fullest extent permitted by law, all claim of error by reason of any such service (but does not waive any right to assert lack of subject matter jurisdiction) and agrees that such service (i) shall be deemed in every respect effective service of process upon the Company and each Non-U.S. Guarantor in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by law, be taken and held to be valid personal service upon and personal delivery to the Company and each Non-U.S. Guarantor so served.

 

Nothing in this Section shall affect the right of the Trustee or any Holder to serve process in any manner permitted by law or limit the right of the Trustee to bring proceedings against the Company in the courts of any jurisdiction or jurisdictions.

 

84











 

SECTION 1502. Indenture and Securities Solely Corporate Obligations.

 

No recourse under or upon any obligation, covenant or agreement of this Indenture, any supplemental indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, shareholder, officer or director, as such, past, present or future, of the Company or any Guarantor or of any successor corporation, either directly or through the Company or any Guarantor, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, shareholders, officers or directors, as such, of the Company or any Guarantor or of any successor corporation, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or any of the Securities or implied therefrom; and that any and all such personal liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, shareholder, officer or director, as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of such Securities.

 

SECTION 1503. Certain Provisions Concerning the Payment of Interest.

 

In the event that any provision of this Indenture would oblige the Company or any Guarantor to make any payment of interest or any other payment which is construed by a court of competent jurisdiction to be interest in an amount or calculated at a rate which would be prohibited by law or would result in a receipt by the Trustee or the Holders, of interest at a criminal rate (as such terms are construed under the Criminal Code (Canada) or any other applicable statute), then notwithstanding such provision, such amount or rate shall be deemed to have been adjusted to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by law or so result in a receipt by the Trustee or the Holders, or any of them, of interest at a criminal rate.

 

Whenever interest is calculated, pursuant to any provision of this Agreement, on the basis of a period other than a calendar year, the annual rate of interest to which such rate of interest as determined by such calculation is equivalent, for purposes of the Interest Act (Canada), is such rate as so calculated multiplied by a fraction, the numerator of which is the actual number of days in the particular calendar year in respect of which the calculation is made, and the denominator of which is the number of days used in the calculation.

 

SECTION 1504. Execution in Counterparts.

 

This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution

 

85











 

and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.

 




 

86











 

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

 

	
 
    	
Kinross Gold Corporation
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Tye W. Burt
    
	
 
    	
 
    	
Name: Tye W. Burt
    
	
 
    	
 
    	
Title:   President and CEO
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Paul H. Barry
    
	
 
    	
 
    	
Name: Paul H. Barry
    
	
 
    	
 
    	
Title:   EVP and CFO
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Aurelian Resources Inc.
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Brant E. Hinze
    
	
 
    	
 
    	
Name: Brant E. Hinze
    
	
 
    	
 
    	
Title:   President
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
BGO (Bermuda) Ltd.
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Andres Verdugo
    
	
 
    	
 
    	
Name: Andres Verdugo
    
	
 
    	
 
    	
Title:   Director, President
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Crown Resources Corporation
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Lauren M. Roberts
    
	
 
    	
 
    	
Name: Lauren M. Roberts
    
	
 
    	
 
    	
Title:   President
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Fairbanks Gold Mining, Inc.
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Lauren M. Roberts
    
	
 
    	
 
    	
Name: Lauren M. Roberts
    
	
 
    	
 
    	
Title:   President
    


 

Signature Page to Indenture

 









 

	
 
    	
Kinross Brasil Mineraçao S.A.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ António Carlos S. Marinho
    	
/s/ Alessandro Lucioli Nepi
    
	
 
    	
Name: 
    	
António Carlos S. Marinho
    	
Alessandro Lucioli Nepi
    
	
 
    	
Title:
    	
Vice-President Brazil
    	
 
    
	
 
    	
 
    	
Vice-President & General Counsel
    	
 
    
	
 
    	
 
    
	
 
    	
Kinross Gold U.S.A., Inc.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Lauren M. Roberts
    
	
 
    	
Name:
    	
Lauren M. Roberts
    
	
 
    	
Title:
    	
President
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Melba Creek Mining, Inc.
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Lauren M. Roberts
    
	
 
    	
Name:
    	
Lauren M. Roberts
    
	
 
    	
Title:
    	
President
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Compania Minera Mantos de Oro
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Andres Verdugo
    
	
 
    	
Name:
    	
Andres Verdugo
    
	
 
    	
Title:
    	
Director & Attorney
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Compania Minera Maricunga
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Andres Verdugo
    
	
 
    	
Name:
    	
Andres Verdugo
    
	
 
    	
Title:
    	
Director & Attorney
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Red Back Mining Mauritania No. 2 Limited
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Brant E. Hinze
    
	
 
    	
Name:
    	
Brant E. Hinze
    
	
 
    	
Title:
    	
CEO
    


 

Signature Page to Indenture

 











 

	
 
    	
Red Back Mining Inc.
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Juliana Lam
    
	
 
    	
 
    	
Name: Juliana Lam
    
	
 
    	
 
    	
Title:   VP, Finance
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Round Mountain Gold Corporation
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/ Lauren M. Roberts
    
	
 
    	
 
    	
Name: Lauren M. Roberts
    
	
 
    	
 
    	
Title:   President
    


 

Signature Page to Indenture

 











 

	
 
    	
WELLS FARGO BANK, NATIONAL
    
	
 
    	
ASSOCIATION, AS TRUSTEE
    
	
 
    	
 
    
	
 
    	
By 
    	
/s/ Martin Reed
    
	
 
    	
 
    	
Martin Reed
    
	
 
    	
 
    	
Vice President
    


 

Signature Page to Indenture