SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
Form 6-K
Report of Foreign Private Issuer
Pursuant to Rule 13a-16 or 15d-16 of
the Securities Exchange Act of 1934
 	 	 	
For the month of: March, 2008	 	Commission File Number: 1-9059	
BARRICK GOLD CORPORATION
(Name of Registrant)
Brookfield Place,TD Canada Trust Tower
Suite 3700
161 Bay Street, P.O. Box 212
Toronto, Ontario
Canada M5J 2S1
(Address of Principal Executive Offices)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F:
 	 	 	
Form 20-F o	 	Form 40-F þ	
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1):                     
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7):                     
Indicate by check mark whether by furnishing the information contained in this Form, the registrant is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934:
 	 	 	
Yes o	 	No þ	
If “Yes” is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): N/A

   

 
SIGNATURES
          Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
 	 	 	 	 	
 	       BARRICK GOLD CORPORATION
 	 	
Date: March 28, 2008 	By:  	/s/ Sybil E. Veenman  	 	
 	 	Name:  	Sybil E. Veenman 	 	
 	 	Title:  	Vice President, Assistant General Counsel and Secretary 	 	

 
EXHIBIT
 	 	 	 	 	
Exhibit	 	Description of Exhibit	
 		
 	99.1	 	 	Indenture, dated as of October 12, 2006, among ABX Financing Company, as Issuer, Barrick International Bank Corp., Barrick (HMC) Mining Company and Barrick Gold Corporation, as Guarantors, and The Bank of New York, as Trustee	
 		
 	99.2	 	 	Indenture, dated as of October 12, 2006, among Barrick International Bank Corp., as Issuer, Barrick (HMC) Mining Company, as the initial Joint Obligor, Barrick Gold Corporation, as Parent Guarantor and The Bank of New York, as Trustee	
 		
 	99.3	 	 	Purchase Agreement, dated as of February 21, 2008, between Barrick Gold Finance, Inc. and Kennecott Explorations (Australia) Ltd.	

 

Exhibit 99.1
ABX FINANCING COMPANY
as Issuer
BARRICK INTERNATIONAL BANK CORP.
BARRICK (HMC) MINING COMPANY
BARRICK GOLD CORPORATION
as Guarantors
AND
THE BANK OF NEW YORK
as Trustee

Indenture
Dated as of October 12, 2006

 

TABLE OF CONTENTS*
 	 	 	 	 	
 	 	Page	 	
PARTIES	 	 	1	 	
RECITALS	 	 	1	 	
 	 	 	 	 	
ARTICLE ONE	
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION	
 	 	 	 	 	
SECTION 101. Definitions	 	 	1	 	
SECTION 102. Compliance Certificates and Opinions	 	 	9	 	
SECTION 103. Form of Documents Delivered to Trustee	 	 	10	 	
SECTION 104. Acts of Holders	 	 	11	 	
SECTION 105. Notices, etc. to Trustee, ABXFC and Guarantors	 	 	12	 	
SECTION 106. Notice to Holders; Waiver	 	 	12	 	
SECTION 107. Effect of Headings and Table of Contents	 	 	13	 	
SECTION 108. Successors and Assigns	 	 	13	 	
SECTION 109. Separability Clause	 	 	13	 	
SECTION 110. Benefits of Indenture	 	 	13	 	
SECTION 111. Governing Law	 	 	13	 	
SECTION 112. Legal Holidays	 	 	13	 	
SECTION 113. Agent for Service; Submission to Jurisdiction; Waiver of Immunities	 	 	14	 	
SECTION 114. Conversion Currency	 	 	14	 	
SECTION 115. Limited Recourse	 	 	16	 	
SECTION 116. Multiple Originals	 	 	16	 	
 	 	 	 	 	
ARTICLE TWO	
SECURITY FORMS	
 	 	 	 	 	
SECTION 201. Form and Dating	 	 	16	 	
SECTION 202. Form of Trustee’s Certificate of Authentication	 	 	17	 	
SECTION 203. ABXFC Notes Issuable in Global Form	 	 	17	 	
SECTION 204. [Intentionally Omitted]	 	 	18	 	
SECTION 205. Execution, Authentication, Delivery and Dating	 	 	18	 	
SECTION 206. Transfer and Exchange	 	 	19	 	
SECTION 207. Mutilated, Destroyed, Lost and Stolen ABXFC Notes	 	 	30	 	
SECTION 208. Payment of Principal and Interest; Interest Rights Preserved.	 	 	30	 	
SECTION 209. Outstanding ABXFC Notes	 	 	32	 	
SECTION 210. Cancellation	 	 	32	 	
SECTION 211. Computation of Interest	 	 	33	 	
SECTION 212. CUSIP Numbers	 	 	33	 	
SECTION 213. Persons Deemed Owners	 	 	33	 	
SECTION 214. Temporary Notes	 	 	34	 	

Note: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture.	
 i 

 

 	 	 	 	 	
 	 	Page	 	
ARTICLE THREE	
REDEMPTION	
 	 	 	 	 	
SECTION 301. Redemption	 	 	34	 	
SECTION 302. Selection by Trustee of ABXFC Notes to be Redeemed	 	 	34	 	
SECTION 303. Notice of Redemption	 	 	34	 	
SECTION 304. Deposit of Redemption Price	 	 	35	 	
SECTION 305. ABXFC Notes Payable on Redemption Date	 	 	35	 	
 	 	 	 	 	
ARTICLE FOUR	
SATISFACTION AND DISCHARGE	
 	 	 	 	 	
SECTION 401. Satisfaction and Discharge of Indenture	 	 	36	 	
SECTION 402. Application of Trust Money	 	 	37	 	
 	 	 	 	 	
ARTICLE FIVE	
REMEDIES	
 	 	 	 	 	
SECTION 501. Events of Default	 	 	37	 	
SECTION 502. Acceleration of Maturity; Rescission and Annulment	 	 	39	 	
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee	 	 	40	 	
SECTION 504. Trustee May File Proofs of Claim	 	 	41	 	
SECTION 505. Trustee May Enforce Claims Without Possession of ABXFC Notes	 	 	42	 	
SECTION 506. Application of Money Collected	 	 	42	 	
SECTION 507. Limitation on Suits	 	 	42	 	
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest	 	 	43	 	
SECTION 509. Restoration of Rights and Remedies	 	 	43	 	
SECTION 510. Rights and Remedies Cumulative	 	 	43	 	
SECTION 511. Delay or Omission Not Waiver	 	 	44	 	
SECTION 512. Control by Holders	 	 	44	 	
SECTION 513. Waiver of Past Defaults	 	 	44	 	
SECTION 514. Waiver of Stay or Extension Laws	 	 	45	 	
SECTION 515. Undertaking for Costs	 	 	45	 	
 	 	 	 	 	
ARTICLE SIX	
THE TRUSTEE	
 	 	 	 	 	
SECTION 601. Notice of Defaults	 	 	45	 	
SECTION 602. Certain Rights of Trustee	 	 	46	 	
SECTION 603. Trustee Not Responsible for Recitals or Issuance of ABXFC Notes	 	 	47	 	
SECTION 604. May Hold ABXFC Notes	 	 	47	 	
SECTION 605. Money Held in Trust	 	 	47	 	
SECTION 606. Compensation and Reimbursement	 	 	47	 	
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests	 	 	48	 	
SECTION 608. Resignation and Removal; Appointment of Successor	 	 	49	 	
SECTION 609. Acceptance of Appointment by Successor	 	 	50	 	
SECTION 610. Merger, Conversion, Consolidation or Succession to Business	 	 	51	 	
SECTION 611. Appointment of Authenticating Agent	 	 	51	 	
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 	 	Page	 	
ARTICLE SEVEN	
HOLDERS’ LISTS AND REPORTS BY TRUSTEE, ABXFC AND GUARANTORS	
 	 	 	 	 	
SECTION 701. Disclosure of Names and Addresses of Holders	 	 	53	 	
SECTION 702. [Intentionally Omitted]	 	 	53	 	
SECTION 703. ABXFC or the Administrator to Furnish Trustee Names and Addresses of Holders	 	 	53	 	
 	 	 	 	 	
ARTICLE EIGHT	
CONSOLIDATION, AMALGAMATION, MERGER, CONVEYANCE,	
TRANSFER OR LEASE	
 	 	 	 	 	
SECTION 801. ABXFC May Not Amalgamate or Consolidate, etc.,	 	 	54	 	
 	 	 	 	 	
ARTICLE NINE	
SUPPLEMENTAL INDENTURES	
 	 	 	 	 	
SECTION 901. Supplemental Indentures Without Consent of Holders	 	 	54	 	
SECTION 902. Supplemental Indentures with Consent of Holders	 	 	55	 	
SECTION 903. Execution of Supplemental Indentures	 	 	56	 	
SECTION 904. Effect of Supplemental Indentures	 	 	56	 	
SECTION 905. Reference in ABXFC Notes to Supplemental Indentures	 	 	56	 	
SECTION 906. Notice of Supplemental Indentures	 	 	56	 	
 	 	 	 	 	
ARTICLE TEN	
COVENANTS	
 	 	 	 	 	
SECTION 1001. Payment of Principal and Interest	 	 	56	 	
SECTION 1002. Maintenance of Office or Agency	 	 	57	 	
SECTION 1003. Money for ABXFC Notes Payments to Be Held in Trust	 	 	57	 	
SECTION 1004. Statement as to Compliance	 	 	59	 	
SECTION 1005. Additional Amounts	 	 	59	 	
SECTION 1006. Limitation or Amendment of Memorandum and Articles of Association	 	 	59	 	
SECTION 1007. Limitation or Payment of Dividends	 	 	59	 	
SECTION 1008. Corporate Existence	 	 	59	 	
SECTION 1009. Limitation on Issuance of Shares	 	 	59	 	
SECTION 1010. U.S. Federal Income Tax Treatment	 	 	59	 	
 	 	 	 	 	
ARTICLE ELEVEN	
VOTING OF THE BARRICK NOTES	
 	 	 	 	 	
SECTION 1101. Voting of the Barrick Notes	 	 	60	 	
 	 	 	 	 	
ARTICLE TWELVE	
ADDITIONAL GUARANTEES	
 	 	 	 	 	
SECTION 1201. Designation of Additional Guarantors	 	 	60	 	
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 	 	Page	 	
ARTICLE THIRTEEN	
MANDATORY EXCHANGE	
 	 	 	 	 	
SECTION 1301. Mandatory Exchange on the Note Exchange Date	 	 	61	 	
SECTION 1302. Effect of Exchange on Interest Payments	 	 	61	 	
SECTION 1303. Delivery upon Exchange of ABXFC Notes	 	 	61	 	
SECTION 1304. Registration of Barrick Notes	 	 	61	 	
SECTION 1305. Charges and Taxes	 	 	61	 	
 	 	 	 	 	
ARTICLE FOURTEEN	
[INTENTIONALLY OMITTED]	
 	 	 	 	 	
ARTICLE FIFTEEN	
GUARANTEE	
 	 	 	 	 	
SECTION 1501. Guarantee	 	 	62	 	
SECTION 1502. Execution and Delivery of Guarantees	 	 	63	 	
SECTION 1503. Form of Guarantee	 	 	64	 	
SECTION 1504. Notice to Trustee	 	 	66	 	
SECTION 1505. This Article Not to Prevent Events of Default	 	 	66	 	
 	 	 	 	 	
ARTICLE SIXTEEN	
MEETINGS OF HOLDERS OF SECURITIES	
 	 	 	 	 	
SECTION 1601. Purposes for Which Meetings May Be Called	 	 	66	 	
SECTION 1602. Call, Notice and Place of Meetings	 	 	66	 	
SECTION 1603. Persons Entitled to Vote at Meetings	 	 	67	 	
SECTION 1604. Quorum; Action	 	 	67	 	
SECTION 1605. Determination of Voting Rights; Conduct and Adjournment of Meetings	 	 	68	 	
SECTION 1606. Counting Votes and Recording Action of Meetings	 	 	69	 	
 	 	 	 	 	
FORM OF SECURITY	 	EXHIBIT A	
FORM OF CERTIFICATE OF TRANSFER	 	EXHIBIT B	
FORM OF CERTIFICATE OF EXCHANGE	 	EXHIBIT C	
FORM OF SUPPLEMENTAL INDENTURE	 	EXHIBIT D	
BARRICK INDENTURE	 	EXHIBIT E	
 iv 

 

          INDENTURE, dated as of October 12, 2006, among ABX FINANCING COMPANY, a Cayman Islands exempted company having limited liability (“ABXFC”), BARRICK INTERNATIONAL BANK CORP., a corporation duly organized and existing under the laws of Barbados, in its capacity as guarantor (“BIBC”), BARRICK (HMC) MINING COMPANY, a corporation duly organized and existing under the laws of Delaware, in its capacity as guarantor (“BMC”), BARRICK GOLD CORPORATION, a corporation duly organized and existing under the laws of the province of Ontario, in its capacity as guarantor (“BGC” and, together with BIBC, BMC and any guarantor added from time to time pursuant to Section 12, the “Guarantors”), and THE BANK OF NEW YORK, as trustee (the “Trustee”).
RECITALS
          ABXFC has duly authorized the execution and delivery of this Indenture to provide for the issuance of $400,000,000 aggregate principal amount of 5.75% Series A ABXFC Notes due 2016 (the “Series A ABXFC Notes”) and $600,000,000 aggregate principal amount of 6.35% Series B ABXFC Notes due 2036 (the “Series B ABXFC Notes,” and together with the Series A ABXFC Notes, the “ABXFC Notes”).
          Each of BIBC, BMC and BGC has 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 ABXFC, BIBC, BMC and BGC, in accordance with its terms, has been done.
          NOW, THEREFORE, THIS INDENTURE WITNESSETH:
          For and in consideration of the premises and the purchase of the ABXFC Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the ABXFC Notes, 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 accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles used in the BGC’s annual financial statements contained in the BGC’s annual report delivered to its shareholders in respect of the fiscal year immediately prior to the date of such computation;
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     (3) 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;
     (4) certain terms, used principally in Article Three, are defined in that Article;
     (5) capitalized terms not otherwise defined in this Indenture have the meanings ascribed to them in the Barrick Indenture.
          “144A Global Note” means one or more Global Notes bearing the Private Placement Legend, that will be issued in an aggregate amount of denominations equal in total to the outstanding principal amount of the ABXFC Notes sold in reliance on Rule 144A.
          “Act”, when used with respect to any Holder, has the meaning specified in Section 104.
          “Administrator” means Maples Finance Limited in its capacity as administrator of ABXFC pursuant to the Administration Agreement, dated as of October 11, 2006, by and between ABXFC and Maples Finance Limited.
          “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 other than any other special purpose company or other entity administered or controlled by the Administrator.
          “Agent Members” has the meaning specified in Section 203.
          “Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange at the relevant time.
          “Authenticating Agent” means any Person appointed by the Trustee to act on behalf of the Trustee pursuant to Section 611 to authenticate ABXFC Notes.
          “Authorized Newspaper” means a newspaper, in the English language or in an official language of the country of publication, customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in each place in connection with which the term is used or in the financial community of each such place. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any Business Day.
          “Bankruptcy Law” has the meaning specified in Section 501.
          “Bankruptcy Order” has the meaning specified in Section 501.
 2 

 

          “Barrick Indenture” means the indenture, dated as of the date hereof, among Barrick International Bank Corp., Barrick (HMC) Mining Company, ABXFC (as to certain provisions only) and Barrick Gold Corporation, as guarantor, and the Trustee, governing the Barrick Notes, a copy of which is attached hereto as Exhibit E.
          “Barrick Notes” means, collectively, the Series A Barrick Notes and the Series B Barrick Notes.
          “Barrick Note Trustee” means, the Trustee in its capacity as trustee under the Barrick Indenture.
          “Board of Directors” means the board of directors of ABXFC or a Guarantor, as the case may be, or any duly authorized committee of such board.
          “Board Resolution” means a copy of a resolution certified by, in the case of ABXFC, a Director of or a Person authorized by the Board of Directors of ABXFC, and, in the case of a Guarantor, the Secretary or an Assistant Secretary of such 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 or any other particular location referred to in this Indenture or in the ABXFC Notes, means a day other than a Saturday, Sunday or other day on which banking institutions are authorized or required by law to close in New York State.
          “Clearstream” means Clearstream Banking Luxembourg, or its successors.
          “Commission” means the U.S. Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act of 1934, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
          “Corporate Trust Office” means the principal corporate trust office of the Trustee in the Borough of Manhattan, The City of New York, at which at any particular time its corporate trust business may be administered, which office on the date of execution of this Indenture is located at 4 New York Plaza, 15 th Floor, New York, New York 10004.
          “corporation” includes corporations, associations, companies and business trusts, except that the term “corporation”, as used in the definition of “Subsidiary”, shall only include corporations.
          “Currency” means any currency or currencies, composite currency or currency unit or currency units, including, without limitation, the Euro, issued by the government of one or more countries or by any recognized confederation or association of such governments.
          “Custodian” has the meaning specified in Section 501.
 3 

 

          “Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.
          “Defaulted Interest” has the meaning specified in Section 208.
          “Definitive Note” means one or more certificated ABXFC Notes registered in the name of the Holder thereof and issued in accordance with Section 206 hereof, in the form of Exhibit A hereto except that such ABXFC Note shall not include the Global Note Legend and the “Schedule of Exchanges of Interests in the Global Note.”
          “Depositary” means The Depository Trust Company, or any successor thereto.
          “Distribution Compliance Period” means the 40-day distribution compliance period as defined in Regulation S.
          “Dollar” or “$” means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private debts.
          “Euroclear” means Euroclear Bank S.A./N.V., or its successor, as operator of the Euroclear system.
          “Event of Default” has the meaning specified in Section 501.
          “Exchange Act” means the Securities Exchange Act of 1934, as amended and the rules and regulations of the Commission thereunder.
          “Federal Bankruptcy Code” means the Bankruptcy Act of Title 11 of the United States Code, as amended from time to time.
          “Global Notes” means one or more ABXFC Notes in the form of Exhibit A hereto that includes the information referred to in footnotes 1, 2, 4, 5 and 6 to the form of ABXFC Note, attached hereto as Exhibit A, issued under this Indenture, that is deposited with or on behalf of and registered in the name of the Depositary or its nominee.
          “Global Note Legend” means the legend set forth in Section 206(f)(ii) hereof, which is required to be placed on all Global Notes issued under this Indenture.
          “Governmental Authority” means any nation or government, any state, province, territory or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
          “Guarantee” means any guarantee of a Guarantor as endorsed on an ABXFC Note authenticated and delivered pursuant to this Indenture and shall include the Guarantees set forth in Section 1501 of this Indenture and all other obligations and covenants of the Guarantors contained in this Indenture and any of the ABXFC Notes.
 4 

 

          “Guarantor” means any of BIBC, BMC, BGC or any Person that is added from time to time as a Guarantor of the ABXFC Notes in accordance with Section 1201 and their respective successors and assigns.
          “Holder” means the Person in whose name an ABXFC Note is registered in the Security Register.
          “Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof.
          “Indirect Participant” means an entity that, with respect to DTC, clears through or maintains a direct or indirect, custodial relationship with a Participant.
          “Interest Payment Date”, when used with respect to any ABXFC Note, means the Stated Maturity of an installment of interest on such ABXFC Note.
          “Issuer Request” or “Issuer Order” means a written request or order signed in the name of ABXFC by the Administrator and delivered to the Trustee.
          “Judgment Currency” has the meaning specified in Section 114.
          “Maturity”, when used with respect to any ABXFC Note, means the date on which the principal of such ABXFC Note or an installment of principal becomes due and payable as therein or herein provided, by declaration of acceleration, notice of redemption or otherwise.
          “Non-U.S. Person” means any Person other than a U.S. Person.
          “Note Exchange Date” means the third Business Day following the last day of the Revolving Period.
          “Notes Custodian” means the Trustee, as custodian with respect to the ABXFC Notes in global form, or any successor entity thereto.
          “Officers’ Certificate” means, in the case of ABXFC, a certificate signed by the a Director of ABXFC or the Administrator, and, in the case of a BGC, a certificate signed by its Chairman, the Chief Executive Officer, the President or a Vice President, and by its Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, and in the case of any other Guarantor, any two directors or officers of such Guarantor and, in each case, delivered to the Trustee.
          “Opinion of Counsel” means a written opinion of counsel, who may be counsel for ABXFC, the Administrator or a Guarantor, including an employee of a Guarantor, and who shall be acceptable to the Trustee.
 5 

 

          “Outstanding”, when used with respect to ABXFC Notes, means, as of the date of determination, all ABXFC Notes theretofore authenticated and delivered under this Indenture, except :
     (i) ABXFC Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
     (ii) ABXFC Notes, or portions thereof, for whose payment or redemption or repayment at the option of the Holder money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than ABXFC, the Administrator or a Guarantor) in trust or set aside and segregated in trust by ABXFC or a Guarantor (if ABXFC, the Administrator or a Guarantor shall act as the Paying Agent) for the Holders of such ABXFC Notes; provided that, if such ABXFC Notes 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; and
     (iii) ABXFC Notes in exchange for or in lieu of which other ABXFC Notes have been authenticated and delivered pursuant to this Indenture, other than any such ABXFC Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such ABXFC Notes are held by a bona fide purchaser in whose hands such ABXFC Notes are valid obligations of ABXFC;
provided , however , that in determining whether the Holders of the requisite principal amount of the Outstanding ABXFC Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, the ABXFC Notes owned by ABXFC, any Guarantor or any other obligor upon the ABXFC Notes or any Affiliate of ABXFC, any Guarantor or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only ABXFC Notes which the Trustee knows to be so owned shall be so disregarded. ABXFC Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee certifies to the Trustee the pledgee’s right so to act with respect to such ABXFC Notes and that the pledgee is not ABXFC, a Guarantor or any other obligor upon the ABXFC Notes or any Affiliate of ABXFC, a Guarantor or such other obligor.
          “Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to The Depository Trust Company, shall include Euroclear and Clearstream).
          “Paying Agent” means any Person (including ABXFC or the Administrator acting as Paying Agent) authorized by ABXFC to pay the principal of or interest on any ABXFC Notes on behalf of ABXFC.
          “Person” means an individual, partnership, corporation, business trust, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.
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          “Place of Payment” means the place or places where the principal of and interest on such ABXFC Notes are payable as specified as contemplated by Section 1002.
          “Private Placement Legend” means the legend set forth in Section 206(f)(i) hereof to be placed on all ABXFC Notes issued under this Indenture except where specifically stated otherwise by the provisions of this Indenture.
          “QIB” means a “qualified institutional buyer” as defined in Rule 144A.
          “QP” means a “qualified purchaser” as defined in Section 2(a)(51)(a) of the Investment Company Act of 1940, as amended.
          “rate(s) of exchange” has the meaning specified in Section 114.
          “Redemption Date”, when used with respect to any ABXFC Note to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to this Indenture.
          “Redemption Price”, when used with respect to any ABXFC Note to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
          “Reg S Permanent Global Note” means one or more permanent Global Notes bearing the Private Placement Legend, that will be issued in an aggregate amount of denominations equal in total to the outstanding principal amount of the Reg S Temporary Global Note upon expiration of the Distribution Compliance Period.
          “Reg S Temporary Global Note” means one or more temporary Global Notes bearing the Private Placement Legend and the Reg S Temporary Global Note Legend, issued in an aggregate amount of denominations equal in total to the outstanding principal amount of the ABXFC Notes initially sold in reliance on Rule 903 of Regulation S.
          “Reg S Temporary Global Note Legend” means the legend set forth in Section 206(f)(iii) hereof, which is required to be placed on all Reg S Temporary Global Notes issued under this Indenture.
          “Regular Record Date” for the interest payable on any Interest Payment Date on the ABXFC Notes of or within any Series means the date specified for that purpose in such Certificated ABXFC Note or Global Note, as applicable.
          “Regulation S” means Regulation S promulgated under the Securities Act, as it may be amended from time to time, and any successor provision thereto.
          “Regulation S Global Note” means a Reg S Temporary Global Note or a Reg S Permanent Global Note, as the case may be.
          “Required Currency” has the meaning specified in Section 114.
          “Responsible Officer”, when used with respect to the Trustee, means the chairman or any vice-chairman of the board of directors, the chairman or any vice-chairman of
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the executive committee of the board of directors, the chairman of the trust committee, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust officer, the controller or any assistant controller 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.
          “Restricted Definitive Note” means one or more Definitive Notes bearing the Private Placement Legend, issued under this Indenture.
          “Restricted Global Note” means one or more Global Notes bearing the Private Placement Legend, issued under this Indenture; provided, that in no case shall an Exchange Note issued in accordance with this Indenture be a Restricted Global Note.
          “Rule 144” means Rule 144 promulgated under the Securities Act, as it may be amended from time to time, and any successor provision thereto.
          “Rule 144A” means Rule 144A promulgated under the Securities Act, as it may be amended from time to time, and any successor provision thereto.
          “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder.
          “Security Register” and “Security Registrar” have the respective meanings specified in Section 208.
          “Series” means, with respect to the ABXFC Notes, either Series A ABXFC Notes or Series B ABXFC Notes and, with respect to the Barrick Notes, either the Series A Barrick Notes or Series B Barrick Notes.
          “Series A Barrick Notes” means the 5.75% Series A Barrick Copper Notes due 2016.
          “Series B Barrick Notes” means the 6.35% Series B Barrick Copper Notes due 2036.
          “Special Record Date” for the payment of any Defaulted Interest on the ABXFC Notes means a date fixed by the Trustee.
          “Stated Maturity”, when used with respect to any ABXFC Notes or any installment of principal thereof or interest thereon, means the date specified in such ABXFC Note as the fixed date on which the principal of such ABXFC Note or such installment of principal or interest is due and payable.
          “Subsidiary” means, in relation a Person, (i) a corporation more than 50% of the outstanding Voting Stock of which at the time of determination is owned, directly or indirectly, by such Person or by one or more Subsidiaries of such Person or by such Person and one or more
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of its Subsidiaries and the votes carried by such Voting Stock are sufficient, if exercised, to elect a majority of the board of directors of the corporation or (ii) any other Person (other than a corporation) in which at the time of determination the first-mentioned Person in this definition and/or one or more of its Subsidiaries, directly or indirectly, has or have at least a majority ownership and power to direct the policies, management and affairs of the Person.
          “Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder; provided , however , that if at any time there is more than one such Person, “Trustee” as used with respect to the ABXFC Notes of any Series shall mean only the Trustee with respect to ABXFC Notes of that Series.
          “United States” means the United States of America (including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
          “Unrestricted Definitive Note” means one or more Definitive Notes that do not bear and are not required to bear the Private Placement Legend, issued under this Indenture.
          “Unrestricted Global Note” means one or more permanent Global Notes representing a series of Notes that does not bear and is not required to bear the Private Placement Legend, issued under this Indenture.
          “U.S. GAAP” means generally accepted accounting principles that are in effect from time to time in the United States of America.
          “Vice President”, when used with respect to BIBC, BMC, BGC 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” means securities or other ownership interests of a corporation, partnership or other entity having by the terms thereof ordinary voting power to vote in the election of the board of directors or other persons performing similar functions of such corporation, partnership or other entity (without regard to the occurrence of any contingency).
SECTION 102. Compliance Certificates and Opinions .
          Upon any application or request by ABXFC or a Guarantor to the Trustee to take any action under any provision of this Indenture, ABXFC or such Guarantor shall furnish to the Trustee, an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture (including any covenant compliance with which constitutes a condition precedent) relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
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          Every certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture (other than pursuant to Section 1004) shall include:
     (1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
     (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
     (3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
     (4) a statement as to whether, in the opinion of each such individual, such covenant or condition has been complied with.
SECTION 103. Form of Documents Delivered to Trustee .
          In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
          Any certificate or opinion of an officer of ABXFC or a Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, 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 ABXFC or the Administrator, or a Guarantor, as the case may be, stating that the information with respect to such factual matters is in the possession of ABXFC or the Administrator, or such Guarantor, as the case may be, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
          Any certificate or opinion of an officer of ABXFC or a Guarantor or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of, or representations by, an accountant or firm of accountants in the employ of ABXFC or a Guarantor, unless such officer or counsel, as the case may be, knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the accounting matters upon which such certificate or opinion may be based are erroneous. Any certificate or opinion of any independent firm of public accountants filed with the Trustee shall contain a statement that such firm is independent.
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          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 .
          (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of the Outstanding ABXFC Notes of either Series or both Series, as the case may be, may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to ABXFC and the Guarantors. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of an ABXFC Note, shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee, ABXFC and the Guarantors, if made in the manner provided in this Section. The record of any meeting of Holders of ABXFC Notes shall be proved in the manner provided in Section 1606.
          (b) The fact and date of the execution by any Person of any such instrument or writing may be proved in any reasonable manner which the Trustee deems sufficient.
          (c) The principal amount and serial numbers of ABXFC Notes held by any Person, and the date of holding the same, shall be proved by the Security Register.
          (d) If ABXFC or any Guarantor shall solicit from the Holders of ABXFC Notes any request, demand, authorization, direction, notice, consent, waiver or other Act, ABXFC or any Guarantor, as the case may be, may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but ABXFC or any Guarantor, as the case may be, shall have no obligation to do so. Such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding ABXFC Notes have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding ABXFC Notes shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record date.
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          (e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any ABXFC Note shall bind every future Holder of the same ABXFC Note and the Holder of every ABXFC Note 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, ABXFC or any Guarantor in reliance thereon, whether or not notation of such action is made upon such ABXFC Note.
SECTION 105. Notices, etc. to Trustee, ABXFC and Guarantors .
          Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other documents 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 or on behalf of ABXFC or a Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing or sent by facsimile to the Trustee at its Corporate Trust Office, 4 New York Plaza, 15th Floor, New York, New York 10004, Attention: Denise S. Moore, Worldwide Securities Services, (212) 623-6216; or
     (2) ABXFC or the Guarantors by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, or sent by overnight courier to ABXFC or the Guarantors, as the case may be, addressed to Maples Finance Limited, as Administrator, P.O. Box 1093GT, Queensgate House, South Church Street, George Town, Grand Cayman, Cayman Islands, in the case of ABXFC, First Floor, Enfield House, Upper Collymore Rock, St. Michael, Barbados, in the case of BIBC, and BCE Place, Canada Trust Tower, Suite 3700, 161 Bay Street, Toronto, Ontario, Canada M5J251, in the case of BMC and BGC or at any other address previously furnished in writing to the Trustee by ABXFC or any Guarantor, as the case may be.
SECTION 106. Notice to Holders; Waiver .
          Where this Indenture provides for notice of any event to Holders of ABXFC Notes by ABXFC, a Guarantor or the Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders of ABXFC Notes is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders of ABXFC Notes. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such notice.
          In case, by reason of the suspension of or irregularities in regular mail service or by reason of any other cause, it shall be impractical to mail notice of any event to Holders of ABXFC Notes when such notice is required to be given pursuant to any provision of this
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Indenture, then any manner of giving such notice as shall be directed by ABXFC shall be deemed to be sufficient giving of such notice for every purpose hereunder.
          Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.
          Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents .
          The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns .
          All covenants and agreements in this Indenture by ABXFC and the Guarantors shall bind their respective successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause .
          In case any provision in this Indenture or in any ABXFC Note 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 110. Benefits of Indenture .
          Nothing in this Indenture or in the ABXFC Notes, express or implied, shall give to any Person, other than the parties hereto, any Authenticating Agent, any Paying Agent, any ABXFC Notes Registrar and their successors hereunder and the Holders of ABXFC Notes, any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law .
          This Indenture, the Guarantees and the ABXFC Notes shall be governed by and construed in accordance with the law of the State of New York.
SECTION 112. Legal Holidays .
          In any case where any Interest Payment Date, Redemption Date or Stated Maturity or Maturity of any ABXFC Note shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of any ABXFC Note, payment of principal or interest need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as
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if made on the Interest Payment Date or Redemption Date or at the Stated Maturity or Maturity; provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, Stated Maturity or Maturity, as the case may be.
SECTION 113. Agent for Service; Submission to Jurisdiction; Waiver of Immunities .
          By the execution and delivery of this Indenture, ABXFC and each Guarantor (i) irrevocably designates and appoints, and acknowledges that it has irrevocably designated and appointed, CT Corporation System, 111 8 th Avenue, 13 th Floor, New York, New York 10011 as its authorized agent upon which process may be served in any suit, action or proceeding arising out of or relating to the ABXFC Notes, the Guarantees or this Indenture that may be instituted in any United States federal or New York state court in The City of New York or brought under federal or state securities laws or brought by the Trustee (whether in its individual capacity or in its capacity as Trustee hereunder) or, subject to Section 507, any Holder of ABXFC Notes or Guarantees in any United States federal or New York state court in The City of New York, (ii) submits to the non-exclusive jurisdiction of any such court in any such suit, action or proceeding, and (iii) agrees that service of process upon CT Corporation System and written notice of said service to ABXFC or a Guarantor, as the case may be (mailed or delivered to its Secretary at its principal office specified in Section 106 of this Indenture and in the manner specified in Section 105 hereof), shall be deemed in every respect effective service of process upon ABXFC or a Guarantor, as the case may be in any such suit, action or proceeding. ABXFC and each Guarantor further agree to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of CT Corporation System in full force and effect so long as any of the ABXFC Notes shall be Outstanding or any amounts shall be payable in respect of any ABXFC Notes.
          ABXFC and each Guarantor irrevocably and unconditionally waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any such action, suit or proceeding in any such court or any appellate court with respect thereto and irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient form to the maintenance of any such action, suit or proceeding in any such court.
          To the extent that ABXFC or a Guarantor has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, each of them hereby irrevocably waives such immunity in respect of its obligations under this Indenture, the applicable Guarantee and the ABXFC Notes, as applicable, to the extent permitted by law.
SECTION 114. Conversion Currency
          ABXFC and each Guarantor covenant and agree that the following provisions shall apply to conversion of Currency in the case of the ABXFC Notes, the Guarantees and this Indenture to the fullest extent permitted by applicable law:
     (a) (i) If for the purposes of obtaining judgment in, or enforcing the judgment of, any court in any country, it becomes necessary to convert into a currency (the “Judgment
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Currency”) an amount due or contingently due under the ABXFC Notes or this Indenture in any other currency (the “Required Currency”), then the conversion shall be made at the rate of exchange prevailing on the Business Day before the day on which the judgment is given or the order of enforcement is made, as the case may be (unless a court shall otherwise determine).
     (ii) If there is a change in the rate of exchange prevailing between the Business Day before the day on which the judgment is given or an order of enforcement is made, as the case may be (or such other date as a court shall determine), and the date of receipt of the amount due, ABXFC or the applicable Guarantor, as the case may be, shall pay such additional (or, as the case may be, such lesser) amount, if any, as may be necessary so that the amount paid in the Judgment Currency when converted at the rate of exchange prevailing on the date of receipt will produce the amount in the Required Currency originally due.
          (b) In the event of the winding-up of ABXFC or a Guarantor at any time while any amount or damages owing under the ABXFC Notes, the Guarantees and this Indenture, or any judgment or order rendered in respect thereof, shall remain unpaid or outstanding, ABXFC or such Guarantor, as the case may be, shall indemnify and hold the Holders and the Trustee harmless against any deficiency arising or resulting from any variation in rates of exchange between (1) the date as of which the equivalent of the amount in the Required Currency (other than under this Subsection (b)) is calculated for the purposes of such winding-up and (2) the final date for the filing of proofs of claim in such winding-up. For the purpose of this Subsection (b) the final date for the filing of proofs of claim in the winding-up of ABXFC or such Guarantor, as the case may be, shall be the date fixed by the liquidator or otherwise in accordance with the relevant provisions of applicable law as being the latest practicable date as at which liabilities of ABXFC or such Guarantor, as the case may be, may be ascertained for such winding-up prior to payment by the liquidator or otherwise in respect thereto.
          (c) The obligations contained in Subsections (a)(ii) and (b) of this Section shall constitute separate and independent obligations of ABXFC or the Guarantors, as the case may be, from its other obligations under the ABXFC Notes, the Guarantees and this Indenture, shall give rise to separate and independent causes of action against ABXFC and the Guarantors, shall apply irrespective of any waiver or extension granted by any Holder or Trustee from time to time and shall continue in full force and effect notwithstanding any judgment or order or the filing of any proof of claim in the winding-up of ABXFC or a Guarantor for a liquidated sum in respect of amounts due hereunder (other than under Subsection (b) above) or under any such judgment or order. Any such deficiency as aforesaid shall be deemed to constitute a loss suffered by the Holders or the Trustee, as the case may be, and no proof or evidence of any actual loss shall be required by ABXFC, such Guarantor or the applicable liquidator. In the case of Subsection (b) above, the amount of such deficiency shall not be deemed to be reduced by any variation in rates of exchange occurring between the said final date and the date of any liquidating distribution.
          (d) The term “rate(s) of exchange” shall mean the Bank of Canada noon rate for purchases on the relevant date of the Required Currency with the Judgment Currency, as reported by Telerate on screen 3194 (or such other means of reporting the Bank of Canada noon
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rate as may be agreed upon by each of the parties to this Indenture) and includes any costs of exchange payable.
SECTION 115. Limited Recourse .
          Payments of principal (including the Redemption Price, if any) and interest in respect of any Series A ABXFC Note will be funded solely from the corresponding payments under the Series A Barrick Notes, under BGC’s guarantee of each of BIBC’s and the Joint Obligor’s obligations under the Series A Barrick Notes or under the Guarantees. If such funds are insufficient to make payments due on the Series A ABXFC Notes, no other assets of ABXFC will be available for payment of the deficiency and all obligations of ABXFC and any claims against ABXFC in respect of such amounts under the Series A ABXFC Notes will be extinguished and will not revive.
          Payments of principal (including the Redemption Price, if any) and interest in respect of any Series B ABXFC Note will be funded solely from the corresponding payments under the Series B Barrick Notes, under BGC’s guarantee of each of BIBC’s and the Joint Obligor’s obligations under the Series B Barrick Notes or under the Guarantees. If such funds are insufficient to make payments due on the Series B ABXFC Notes, no other assets of ABXFC will be available for payment of the deficiency and all obligations of ABXFC and any claims against ABXFC in respect of such amounts under the Series B ABXFC Notes will be extinguished and will not revive.
          Neither payments of the BIBC Settlement Date Payment received by ABXFC from BIBC under the Barrick Notes nor amounts received by ABXFC under the Copper Swap Agreements will be paid to Holders of ABXFC Notes. Holders of ABXFC Notes will not be required to fund any portion of payments to the Counterparties under the Copper Swap Agreements, and no amount which would otherwise be due to Holders of ABXFC Notes will be used to make such payments.
          A director, officer, employee, shareholder or affiliate, as such, of ABXFC, the Administrator, Maples Finance Limited in its capacity as share trustee of the shares in ABXFC or any Guarantor shall not have any liability for any obligations of ABXFC or any Guarantor under the ABXFC Notes, the Guarantees or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting an ABXFC Note, each Holder shall waive and release all such liability. Such waiver and release shall be part of the consideration for the issue of the ABXFC Notes.
SECTION 116. Multiple Originals .
          The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Indenture.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Form and Dating .
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          The ABXFC Notes and the Trustee’s certificate of authentication shall be substantially in the form set forth in Exhibit A and Section 202 hereof, respectively. The ABXFC Notes may have notations, legends or endorsements required by law or usage. Each ABXFC Note shall be dated the date of its authentication.
          The terms and provisions contained in the ABXFC Notes shall constitute, and are hereby expressly made, a part of this Indenture and ABXFC, the Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any ABXFC Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
SECTION 202. Form of Trustee’s Certificate of Authentication .
          Subject to Section 611, the Trustee’s certificate of authentication shall be in substantially the following form:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
          Dated:                                          
          This is one of the ABXFC Notes of the Series designated therein referred to in the within-mentioned Indenture.
 	 	 	 	 	 	 	
 	 	THE BANK OF NEW YORK,
                 as Trustee	 	 	
 		
 	 	By	 	 	 	 	
 	 	 	 	 
Authorized Officer	 	 	
SECTION 203. ABXFC Notes Issuable in Global Form
          ABXFC Notes issued in global form shall be substantially in the form of Exhibit A attached hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note shall represent such of the Outstanding ABXFC Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of Outstanding ABXFC Notes from time to time endorsed thereon and that the aggregate principal amount of Outstanding ABXFC Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of Outstanding ABXFC Notes represented thereby shall be made by the Trustee or the Notes Custodian, at the direction of the Trustee, in accordance with written instructions given by the Holder thereof as required by Section 206.
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          The provisions of the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream Banking Luxembourg” and “Customer Handbook” of Clearstream in effect at the relevant time shall be applicable to transfers of beneficial interests in the Regulation S Global Notes that are held by Participants through Euroclear or Clearstream.
SECTION 204. [Intentionally Omitted] .
SECTION 205. Execution, Authentication, Delivery and Dating
          The ABXFC Notes shall be executed on behalf of ABXFC by any Person authorized by its Board of Directors to do so. The signature of any of these Persons on the ABXFC Notes may be the manual or facsimile signatures of the present or any future such authorized officer and may be imprinted or otherwise reproduced on the ABXFC Notes.
          ABXFC Notes bearing the manual or facsimile signatures of individuals who were at any time duly authorized to sign on behalf of ABXFC shall bind ABXFC notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such ABXFC Notes or did not hold such offices at the date of such ABXFC Notes.
          At any time after the execution and delivery of this Indenture, ABXFC may deliver ABXFC Notes of any Series in accordance with the terms of this Indenture, executed by ABXFC and endorsed by the Parent Guarantor to the Trustee for authentication, together with an Issuer Order for the authentication and delivery of such ABXFC Notes, and the Trustee in accordance with the Issuer Order shall authenticate and deliver such ABXFC Notes.
          In authenticating the ABXFC Notes, and accepting the responsibilities under this Indenture in relation to the ABXFC Notes, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion or Opinions of Counsel of ABXFC and the Guarantors stating:
     (a) that the form the ABXFC Notes and the Guarantees have been established in conformity with the provisions of this Indenture;
     (b) that the ABXFC Notes and the Guarantees, when completed by appropriate insertions and executed and delivered by ABXFC and the Guarantors to the Trustee for authentication in accordance with this Indenture, authenticated and delivered by the Trustee in accordance with this Indenture and issued by ABXFC and the Guarantors in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute the legal, valid and binding obligations of ABXFC and the Guarantors, respectively, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting the enforcement of creditors’ rights, to general equitable principles and to such other qualifications as such counsel shall conclude do not materially affect the rights of Holders of the ABXFC Notes;
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     (c) that all laws and requirements in respect of the execution and delivery by ABXFC and by the Guarantors of the Guarantees, have been complied with and that authentication and delivery of the ABXFC Notes by the Trustee will not violate the terms of this Indenture;
     (d) that each of ABXFC and the Guarantors has the corporate power to issue the ABXFC Notes and any Guarantees, respectively, and has duly taken all necessary corporate action with respect to such issuance; and
     (e) that the issuance of the ABXFC Notes and any Guarantees will not contravene the articles of incorporation or by-laws of ABXFC or the Guarantors, or result in any violation of any of the terms or provisions of any law or regulation.
          The Trustee shall not be required to authenticate and deliver any such ABXFC Notes if the issue of such ABXFC Notes pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the ABXFC Notes and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
          Each ABXFC Note shall be dated the date of its authentication. No ABXFC Note or Guarantee endorsed thereon shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such ABXFC Note a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual signature of an authorized officer, and such certificate upon any ABXFC Note shall be conclusive evidence, and the only evidence, that such ABXFC Note has been duly authenticated and delivered hereunder and is entitled, together with the Guarantee endorsed thereon to the benefits of this Indenture. Notwithstanding the foregoing, if the ABXFC Notes shall have been authenticated and delivered hereunder but never issued and sold by ABXFC, and ABXFC shall deliver the ABXFC Notes to the Trustee for cancellation, together with a written statement (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that the ABXFC Notes have never been issued and sold by ABXFC, for all purposes of this Indenture the ABXFC Notes shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
          The ABXFC Notes shall be issuable only in registered form without coupons and only in denominations of $100,000 in principal amount and any $1,000 integral multiple thereof.
SECTION 206. Transfer and Exchange
          (a)  Transfer and Exchange of Global Notes . A Global Note may not be transferred as a whole except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by ABXFC for Definitive Notes if ABXFC delivers to the Trustee notice from the Depositary that the Depositary is unwilling or unable to continue to act as Depositary for the Global Notes and ABXFC thereupon fails to appoint a successor Depositary within 90 days. Upon the occurrence of such event, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee in writing. Global Notes also may be
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exchanged or replaced, in whole or in part, as provided in Sections 207 and 214 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 206 or Section 207 or 214 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 206(a), however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 206(b), or (c) hereof.
          (b)  Transfer and Exchange of Beneficial Interests in the Global Notes . The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes shall be subject to restrictions on transfer as set forth herein. Transfers of beneficial interests in the Global Notes also shall require compliance with either subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
          (i)  Transfer of Beneficial Interests in the Same Global Note . Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend. Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Security Registrar to effect the transfers described in this Section 206(b)(i).
          (ii)  All Other Transfers and Exchanges of Beneficial Interests in Global Notes . In connection with all transfers and exchanges of beneficial interests that are not subject to Section 206(b)(i) above, the transferor of such beneficial interest must deliver to the Security Registrar both (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase. Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, upon the written instructions of ABXFC or the Administrator, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 206(g) hereof.
          (iii)  Transfer of Beneficial Interests to Another Restricted Global Note . A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 206(b)(ii) above and the Security Registrar receives the following:
          (A) if the transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; and
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          (B) if the transferee will take delivery in the form of a beneficial interest in the Reg S Temporary Global Note or the Reg S Permanent Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof.
          (iv)  Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in the Unrestricted Global Note . A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 206(b)(ii) above and the Security Registrar receives the following: (1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or (2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof; and, if the Security Registrar or ABXFC so requests or if the Applicable Procedures so require, an Opinion of Counsel in form, reasonably acceptable to the Security Registrar and ABXFC to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
          If any such transfer is effected pursuant to subparagraph (A) above at a time when an Unrestricted Global Note has not yet been issued, ABXFC shall issue and, upon receipt of an Authentication Order in accordance with Section 2.2 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to subparagraph (A) above. Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.
          (c)  Transfer or Exchange of Beneficial Interests for Definitive Notes .
          (i)  Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes . If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Security Registrar of the following documentation:
          (A) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;
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          (B) if such beneficial interest is being transferred to a Person who is both a QIB in accordance with Rule 144A and a QP, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;
          (C) if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904 under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;
          (D) if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144 and to a QP, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;
          (E) if such beneficial interest is being transferred to ABXFC or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or
          (F) if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof, the Trustee, upon the written instructions of ABXFC or the Administrator, shall cause the aggregate principal amount of the applicable Restricted Global Note to be reduced accordingly pursuant to Section 206(g) hereof, and ABXFC shall execute and, upon receipt of an authentication order pursuant to Section 205 hereof, the Trustee shall authenticate and deliver to the Person designated in the instructions a Restricted Definitive Note in the appropriate principal amount. Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 206(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Security Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Restricted Definitive Notes to the Persons in whose names such Notes are so registered. Any Restricted Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 206(c)(i) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.
          (ii)  Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes . A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if the Security Registrar receives the following: (1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or (2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form
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of Exhibit B hereto, including the certifications in item (4) thereof; and, if the Security Registrar or ABXFC so requests or if the Applicable Procedures so require, an Opinion of Counsel in form, reasonably acceptable to the Security Registrar and ABXFC to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.
          (iii)  Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes . If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note, then, upon satisfaction of the conditions set forth in Section 206(b)(ii) hereof, the Trustee, upon the written instructions of ABXFC or the Administrator, shall cause the aggregate principal amount of the applicable Unrestricted Global Note to be reduced accordingly pursuant to Section 206(g) hereof, and ABXFC shall execute and, upon receipt of an authentication order pursuant to Section 205 hereof, the Trustee shall authenticate and deliver to the Person designated in the instructions an Unrestricted Definitive Note in the appropriate principal amount. Any Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this Section 206(c)(iii) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Security Registrar in writing through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Unrestricted Definitive Notes to the Persons in whose names such Notes are so registered. Any Unrestricted Definitive Note issued in exchange for a beneficial interest pursuant to this Section 206(c)(iii) shall not bear the Private Placement Legend.
          (iv)  Transfer or Exchange of Reg S Temporary Global Notes . Notwithstanding the other provisions of this Section 206, a beneficial interest in the Reg S Temporary Global Note may not be (A) exchanged for a Definitive Note prior to (x) the expiration of the Distribution Compliance Period (unless such exchange is effected by ABXFC, does not require an investment decision on the part of the holder thereof and does not violate the provisions of Regulation S) and (y) the receipt by the Security Registrar of any certificates identified by ABXFC or its counsel to be required pursuant to Rule 903(c)(3)(B) under the Securities Act or (B) transferred to a Person who takes delivery thereof in the form of a Definitive Note prior to the events set forth in clause (A) above or unless the transfer is pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.
          (d)  Transfer and Exchange of Definitive Notes for Beneficial Interests .
          (i)  Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes . If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Security Registrar of the following documentation:
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          (A) if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;
          (B) if such Restricted Definitive Note is being transferred to a Person who is both a QIB in accordance with Rule 144A and a QP, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof; or
          (C) if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904 under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof,
the Trustee, upon the written instructions of ABXFC or the Administrator, shall cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global Note, and in the case of clause (C) above, the Regulation S Global Note.
          (ii)  Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes . A holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if the Security Registrar receives the following: (1) if the Holder of such Restricted Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or (2) if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof; and, if the Security Registrar or ABXFC so requests or if the Applicable Procedures so require, an Opinion of Counsel in form, reasonably acceptable to the Security Registrar and ABXFC to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act. Upon satisfaction of the conditions in this Section 206(d)(ii), the Trustee, upon the written instructions of ABXFC or the Administrator, shall cancel the Restricted Definitive Notes so transferred or exchanged and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.
          (iii)  Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes . A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee, upon the written instructions of ABXFC or the Administrator, shall cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes. If any such exchange or transfer from a Definitive Note to a
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beneficial interest is effected pursuant to subparagraphs (i)(B), (ii) or (iii) of this Section 206(d) at a time when an Unrestricted Global Note has not yet been issued, ABXFC shall issue and, upon receipt of an authentication order in accordance with Section 205 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.
          (e)  Transfer and Exchange of Definitive Notes for Definitive Notes . Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 206(e), the Security Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Security Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Security Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 206(e).
          (i)  Restricted Definitive Notes to Restricted Definitive Notes . Any Restricted Definitive Note may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Security Registrar receives the following:
          (A) if the transfer will be made pursuant to Rule 144A and to a QP, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;
          (B) if the transfer will be made pursuant to Rule 903 or Rule 904 under the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and
          (C) if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable.
          (ii)  Restricted Definitive Notes to Unrestricted Definitive Notes . Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if the Security Registrar receives the following: (1) if the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or (2) if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof; and, if the Security Registrar or ABXFC so requests or if the Applicable Procedures so require, an Opinion of Counsel in form, reasonably acceptable to the Security Registrar and ABXFC to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private
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Placement Legend are no longer required in order to maintain compliance with the Securities Act.
          (iii)  Unrestricted Definitive Notes to Unrestricted Definitive Notes . A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Security Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.
          (f)  Legends . The following legends shall appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture.
          (i)  Private Placement Legend .
          (A) Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:
          “THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS TWO YEARS AFTER THE LATER OF THE ISSUE DATE HEREOF AND THE LAST DATE ON WHICH ABX FINANCING COMPANY (“ABXFC”) OR ANY AFFILIATE OF ABXFC WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO ABXFC, THE GUARANTORS OR THE PARENT GUARANTOR, (B) FOR SO LONG AS THE ABXFC NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS BOTH A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A AND A “QUALIFIED PURCHASER” AS DEFINED IN THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED, THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A PERSON THAT IS BOTH A QUALIFIED INSTITUTIONAL BUYER AND A QUALIFIED PURCHASER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (D) TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED PURCHASER AND PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT UPON THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO ABXFC, THE
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GUARANTORS AND THE PARENT GUARANTOR, SUBJECT IN EACH OF THE FOREGOING CASES, TO A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY BEING COMPLETED AND DELIVERED BY THE TRANSFEROR TO ABXFC, ONE OF THE GUARANTORS OR THE PARENT GUARANTOR. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE, PROVIDED THAT IT WILL BE REPLACED WITH A LEGEND THAT RESTRICTS RESALES WITHIN THE UNITED STATES TO QUALIFIED PURCHASERS.”
          (B) Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraphs (b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), or (e)(iii) of this Section 206 (and all ABXFC Notes issued in exchange therefor or substitution thereof) shall not bear the Private Placement Legend.
          (ii)  Global Note Legend . To the extent required by the Depositary, each Global Note shall bear legends in substantially the following form:
          “THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 206 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 206(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 210 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF ABXFC.”
          “UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
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          (iii)  Reg S Temporary Global Note Legend . To the extent required by the Depositary, each Reg S Temporary Global Note shall bear a legend in substantially the following form:
          “THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.
          THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE CASH PAYMENTS OF INTEREST DURING THE PERIOD WHICH SUCH HOLDER HOLDS THIS NOTE. NOTHING IN THIS LEGEND SHALL BE DEEMED TO PREVENT INTEREST FROM ACCRUING ON THIS NOTE.”
          (iv)  U.S. Federal Income Tax Legend. Each Global Note shall bear the following legend:
          “BY PURCHASING THIS NOTE, THE HOLDER AGREES TO TREAT ITS INVESTMENT IN THIS NOTE AND, FOLLOWING THE NOTE EXCHANGE DATE THE BARRICK NOTE RECEIVED IN EXCHANGE THEREFOR, AS INDEBTEDNESS OF BARRICK INTERNATIONAL BANK CORP. (AND OF THE JOINT OBLIGORS TO THE EXTENT OF THEIR OBLIGATIONS THEREUNDER) FOR ALL U.S. FEDERAL INCOME TAX PURPOSES.”
          (g)  Cancellation and/or Adjustment of Global Notes . At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or cancelled in whole and not in part, each such Global Note shall be returned to or retained and cancelled by the Trustee in accordance with Section 201 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement may be made on such Global Note by the Depositary to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement may be made on such Global Note the Depositary to reflect such increase.
          (h)  General Provisions Relating to Transfers and Exchanges .
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          (i) To permit registrations of transfers and exchanges, ABXFC shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an authentication order in accordance with Section 205 hereof or at the Security Registrar’s request.
          (ii) No service charge shall be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but ABXFC may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Section 214 hereof).
          (iii) The Security Registrar shall not be required to register the transfer of or exchange any ABXFC Note selected for redemption in whole or in part, except the unredeemed portion of any ABXFC Note being redeemed in part.
          (iv) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of ABXFC, evidencing the same Indebtedness, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
          (v) Neither the Security Registrar nor ABXFC shall be required (A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of ABXFC Notes for redemption under Section 302 hereof and ending at the close of business on the day of selection, (B) to register the transfer of or to exchange any ABXFC Note so selected for redemption in whole or in part, except the unredeemed portion of any ABXFC Note being redeemed in part or (C) to register the transfer of or to exchange an ABXFC Note between a Record Date and the next succeeding Interest Payment Date.
          (vi) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Paying Agent and ABXFC may deem and treat the Person in whose name any ABXFC Note is registered as the absolute owner of such ABXFC Note for the purpose of receiving payment of principal of and interest on such ABXFC Notes and for all other purposes, and none of the Trustee, any Paying Agent or ABXFC shall be affected by notice to the contrary.
          (vii) The Trustee shall authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 205 hereof.
          (viii) All certifications, certificates and Opinions of Counsel required to be submitted to the Security Registrar pursuant to this Section 206 to effect a registration of transfer or exchange may be submitted by facsimile.
          Notwithstanding anything herein to the contrary, as to any certifications and certificates delivered to the Security Registrar pursuant to this Section 206, the Security Registrar’s duties shall be limited to confirming that any such certifications and certificates delivered to it are in the form of Exhibits A, B and C attached hereto. The Security Registrar shall not be responsible for confirming the truth or accuracy of representations made in any such certifications or certificates.
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          (i) Following the expiration of the Distribution Compliance Period, any Reg S Temporary Global Note shall be cancelled and replaced with a Reg S Permanent Global Note in the same aggregate principal amount registered in the same names as the cancelled Reg S Temporary Global Note.
SECTION 207. Mutilated, Destroyed, Lost and Stolen ABXFC Notes
          If any mutilated ABXFC Note is surrendered to the Trustee, ABXFC shall execute and the Trustee shall authenticate and deliver in exchange therefor a replacement ABXFC Note of the same Series and of like tenor and principal amount and evidencing the same indebtedness and having endorsed thereon Guarantees executed by the Guarantors and bearing a number not contemporaneously outstanding.
          If there shall be delivered to ABXFC and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any ABXFC Note 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 ABXFC or the Trustee that such ABXFC Note has been acquired by a bona fide purchaser, ABXFC shall execute and upon Issuer Order the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen ABXFC Note, a replacement ABXFC Note of the same Series and of like tenor and principal amount and evidencing the same indebtedness and having endorsed thereon Guarantees executed by the Guarantors and bearing a number not contemporaneously outstanding.
          Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen ABXFC Note has become or is about to become due and payable, ABXFC in its discretion may, instead of issuing a replacement ABXFC Note, pay such ABXFC Note.
          Upon the issuance of any replacement ABXFC Note under this Section, ABXFC may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
          Every replacement ABXFC Note of any Series and the Guarantees endorsed thereon issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen ABXFC Note, shall constitute a contractual obligation of ABXFC and the Guarantors, respectively, whether or not the mutilated, destroyed, lost or stolen ABXFC Note 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 ABXFC Notes 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 ABXFC Notes.
SECTION 208. Payment of Principal and Interest; Interest Rights Preserved.
          (a) Interest on any ABXFC Note which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such
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ABXFC Note (or one or more predecessor ABXFC Notes) is registered at the close of business on the regular record date for such interest at the office or agency of ABXFC maintained for such purpose pursuant to Section 1002; provided , however , that each installment of interest, if any, on any ABXFC Note may at ABXFC’s option be paid by (i) mailing a check for such interest, payable to or upon the written order of the Person entitled thereto, to the address of such Person as it appears on the Security Register or (ii) wire transfer to an account located in the United States maintained by the Person entitled to such payment as specified in the Security Register. Principal paid in relation to any ABXFC Note at Maturity shall be paid to the Holder of such ABXFC Note only upon presentation and surrender of such ABXFC Note to any office or agency referred to in this Section 210(a).
          If a Note Exchange Date occurs on or after a Record Date but prior to the corresponding Interest Payment date, then ABXFC shall not be required to make any further payment of Interest to the Holders.
          Any interest on any ABXFC Note which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the Holder on the relevant regular record date by virtue of having been such Holder, and such defaulted interest and interest on such defaulted interest (to the extent lawful) at the rate specified in the ABXFC Notes of such Series (such defaulted interest and, if applicable, interest thereon herein collectively called “Defaulted Interest”) shall be paid by ABXFC, at its election in each case, as provided in clause (1) or (2) below:
     (1) ABXFC may elect to make payment of any Defaulted Interest to the Persons in whose names the ABXFC Notes of such Series (or their respective predecessor ABXFC Notes) 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. ABXFC shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Registered ABXFC Note of such Series and the date of the proposed payment, and at the same time ABXFC shall deposit with the Trustee an amount of money in Dollars equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify ABXFC of such Special Record Date and, in the name and at the expense of ABXFC, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given in the manner provided in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so given, such Defaulted Interest shall be paid to the Persons in whose name the ABXFC Notes of such Series (or their respective predecessor ABXFC Notes) are registered at the close of business
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on such Special Record Date and shall no longer be payable pursuant to the following clause (2).
     (2) ABXFC may make payment of any Defaulted Interest on the ABXFC Notes of any Series in any other lawful manner.
SECTION 209. Outstanding ABXFC Notes .
          Each Series of ABXFC Notes outstanding at any time will consist of all ABXFC Notes that have been authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation and those described in this Section as not outstanding.
          If a Note is replaced pursuant to Section 207, it ceases to be outstanding unless and until the Trustee and ABXFC receive proof satisfactory to them that the replaced ABXFC Note is held by a bona fide purchaser.
          If the Paying Agent (other than ABXFC or an Affiliate of ABXFC) holds on the maturity date of such Series of ABXFC Notes money sufficient to pay ABXFC Notes of that Series payable on that date, then on and after that date such ABXFC Notes cease to be outstanding and interest on them shall cease to accrue.
          A ABXFC Note does not cease to be outstanding because ABXFC or one of its Affiliates holds such ABXFC Note, provided, however , that in determining whether the Holders of the requisite principal amount of the outstanding ABXFC Notes of such Series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, ABXFC Notes of such Series owned by ABXFC or the Guarantors or any Affiliate of ABXFC or any Guarantor 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 or waiver, only ABXFC Notes of such Series which a Responsible Officer of the Trustee has actual knowledge to be so owned shall be so disregarded. ABXFC Notes 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 ABXFC Notes and that the pledgee is not ABXFC or any Guarantor or any Affiliate of ABXFC or any Guarantor.
SECTION 210. Cancellation
          All ABXFC Notes surrendered for exchange pursuant to Section 1301 of this Indenture, payment, redemption, registration of transfer shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All ABXFC Notes so delivered to the Trustee shall be promptly cancelled by it. ABXFC or the Guarantors may at any time deliver to the Trustee for cancellation any ABXFC Notes previously authenticated and delivered hereunder which ABXFC or the Guarantors 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 ABXFC Notes previously authenticated hereunder which ABXFC has not issued and sold, and all ABXFC Notes so delivered shall be promptly cancelled by the Trustee. If ABXFC shall so acquire any of the ABXFC Notes, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such ABXFC Notes unless and until the same are surrendered to
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the Trustee for cancellation. No ABXFC Notes shall be authenticated in lieu of or in exchange for any ABXFC Notes cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled ABXFC Notes held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures and certification of their disposal delivered to ABXFC unless by Issuer Order ABXFC shall direct that cancelled ABXFC Notes be returned to it.
SECTION 211. Computation of Interest
          Interest on the ABXFC Notes of each Series shall be computed on the basis of a 360-day year of twelve 30-day months. For the purposes of disclosure under the Interest Act (Canada), the yearly rate of interest which is equivalent to the rate payable hereunder is the rate payable hereunder multiplied by the actual number of days in the year divided by 360.
SECTION 212. CUSIP Numbers
          ABXFC in issuing the ABXFC Notes may use “CUSIP”, “CINS” or “ISIN” numbers (if then generally in use), and ABXFC and the Trustee shall use CUSIP, CINS or ISIN numbers, as the case may be, in notices of redemption or exchange as a convenience to Holders of the applicable Series of ABXFC Notes; provided that any such notice shall state that no representation is made as to the correctness of such numbers either as printed on such ABXFC Notes or as contained in any notice of redemption or exchange and that reliance may be placed only on the other identification numbers printed on such ABXFC Notes. ABXFC shall promptly notify the Trustee in writing of any change in “CUSIP”, “CINS” or “ISIN” numbers for the applicable Series of ABXFC Notes.
SECTION 213. Persons Deemed Owners
          Prior to due presentment of an ABXFC Note for registration of transfer, ABXFC, the Guarantors, the Trustee and any agent of ABXFC, the Guarantors or the Trustee may treat the Person in whose name such ABXFC Note is registered as the owner of such ABXFC Note for the purpose of receiving payment of the principal amount of the ABXFC Note at Maturity, in respect thereof, and accrued interest, for all purposes whatsoever, whether or not such ABXFC Note is overdue, and none of ABXFC, the Trustee and any of their respective agents shall be affected by notice to the contrary.
          None of ABXFC, the Guarantors, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of an ABXFC Note in global form or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
          Notwithstanding the foregoing, with respect to any Global Note, nothing herein shall prevent ABXFC, the Guarantors, the Trustee, or any agent of any of the foregoing from giving effect to any written certification, proxy or other authorization furnished by any depositary, as a Holder, with respect to such Global Note or impair, as between such depositary and owners of beneficial interests in such Global Note, the operation of customary practices
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governing the exercise of the rights of such depositary (or its nominee) as Holder of such Global Note.
SECTION 214. Temporary Notes
          Where this Indenture requires the execution, delivery and authentication of Definitive Notes, until certificates representing ABXFC Notes are ready for delivery, ABXFC may prepare and the Trustee, upon receipt of an authentication order, shall authenticate temporary ABXFC Notes. Temporary ABXFC Notes shall be substantially in the form of Definitive Notes but may have variations that ABXFC considers appropriate for temporary ABXFC Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, ABXFC shall prepare and the Trustee shall authenticate Definitive Notes in exchange for temporary ABXFC Notes. Holders of temporary ABXFC Notes shall be entitled to all of the benefits of this Indenture.
ARTICLE THREE
REDEMPTION
SECTION 301. Redemption
          Three Business Days following the redemption by BIBC and/or the applicable Joint Obligor, in whole or in part, of any Barrick Notes held by ABXFC, as provided in the Barrick Indenture, at the option of BIBC and/or the applicable Joint Obligor or upon the occurrence of a Tax Event, in each case, the proceeds from the redemption shall be applied by ABXFC to redeem a like amount of the ABXFC Notes of the corresponding Series, at a Redemption Price equal to the redemption price of such Barrick Notes specified in the Barrick Indenture.
SECTION 302. Selection by Trustee of ABXFC Notes to be Redeemed
          If less than all the ABXFC Notes of any Series are to be redeemed, the particular ABXFC Notes of such Series to be redeemed shall be selected prior to the Redemption Date by the Trustee, from the Outstanding ABXFC Notes of such Series not previously called for redemption, by lot or in such manner as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions of the principal of ABXFC Notes of such Series.
          The Trustee shall promptly notify ABXFC and the Guarantors in writing of the ABXFC Notes of such Series selected for redemption and, in the case of any ABXFC Notes of such Series selected for partial redemption, the principal amount thereof to be redeemed.
          For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of ABXFC Notes shall relate, in the case of any ABXFC Note redeemed or to be redeemed only in part, to the portion of the principal amount of such ABXFC Note which has been or is to be redeemed.
SECTION 303. Notice of Redemption
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          A notice of redemption shall be given in the manner provided for in Section 106 not more than five days after receipt by ABXFC of the notice of redemption of the Barrick Notes being redeemed, to each Holder of ABXFC Notes to be redeemed. All notices of redemption shall state:
     (i) the Redemption Date;
     (ii) the Redemption Price and the amount of accrued interest to the Redemption Date payable, if any;
     (iii) if less than all the Outstanding ABXFC Notes of any Series are to be redeemed, the identification of the particular ABXFC Notes of such Series to be redeemed;
     (iv) in case any ABXFC Note is to be redeemed in part only, the notice which relates to such ABXFC Note shall state that on and after the Redemption Date, upon surrender of such ABXFC Note, the Holder will receive, without charge, a new ABXFC Note or ABXFC Notes of authorized denominations for the principal amount thereof remaining unredeemed;
     (v) that on the Redemption Date, the Redemption Price and accrued interest, if any, to the Redemption Date will become due and payable upon each such ABXFC Note, or the portion thereof, to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date; and
     (vi) the Place or Places of Payment where such ABXFC Notes are to be surrendered for payment of the Redemption Price and accrued interest, if any.
          Notice of redemption of ABXFC Notes to be redeemed in accordance with this Article 3 shall be given by ABXFC or, at ABXFC’s request, by the Trustee in the name and at the expense of ABXFC.
SECTION 304. Deposit of Redemption Price
          Upon receipt of the proceeds of a redemption of any of the Barrick Notes, ABXFC shall deposit or cause to be deposited with the Trustee or with a Paying Agent (or, if ABXFC or the Administrator is acting as Paying Agent, segregate and hold in trust) such proceeds (being an amount of money sufficient to pay the Redemption Price of, and accrued interest, if any, on, all the ABXFC Notes which are to be redeemed on that date).
          ABXFC will cause the bank through which payment of funds to the Trustee or the Paying Agent will be made to deliver to the Trustee or the Paying Agent, as the case may be, by 10:00 a.m. (New York Time) two Business Days prior to the due date of such payment an irrevocable confirmation (by tested telex or authenticated Swift MT 100 Message) of its intention to make such payment.
SECTION 305. ABXFC Notes Payable on Redemption Date
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          Notice of redemption having been given in respect of the Barrick Notes and the ABXFC Notes, as aforesaid, the ABXFC Notes to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price, and from and after the redemption date in respect of such Barrick Notes (unless ABXFC shall default in the payment of the Redemption Price) such ABXFC Notes shall cease to bear interest. Upon surrender of any such ABXFC Note for redemption in accordance with said notice, such ABXFC Note shall be paid by ABXFC at the Redemption Price.
          If any Barrick Note called for redemption shall not be so paid upon surrender thereof for redemption, the principal on the corresponding ABXFC Note called for redemption under this Article 3 shall, until such Barrick Note is paid, bear interest from the Redemption Date at the rate of interest set forth in such ABXFC Note.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture .
          This Indenture shall upon Issuer Request of ABXFC cease to be of further effect with respect to any Series of ABXFC Notes issued by ABXFC specified in the Issuer Request (except as to any surviving rights of registration of transfer or exchange of ABXFC Notes of such Series expressly provided for in Article Two, and the rights of Holders of Outstanding ABXFC Notes of such Series to receive, solely from the trust fund described in subclause (B) of clause (1) of this Section, payments in respect of the principal of and interest on such ABXFC Notes when such payments are due and except as provided in the last paragraph of this Section 401) and the Trustee, at the expense of ABXFC, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such Series when:
     (1) Either:
     (A) all ABXFC Notes of such Series theretofore authenticated and delivered (other than ABXFC Notes which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 207, and ABXFC Notes for whose payment money has theretofore been deposited in trust with the Trustee or any Paying Agent or segregated and held in trust by ABXFC and thereafter repaid to ABXFC, as provided in Section 1003) have been delivered to the Trustee for cancellation; or
     (B) all ABXFC Notes of such Series thereto not theretofore delivered to the Trustee for cancellation:
     (i) have become due and payable (whether at the Stated Maturity or upon acceleration, or on any Redemption Date or upon exchange in accordance with Article Thirteen); or
     (ii) will become due and payable at their Stated Maturity within one year; or
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     (iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of ABXFC,
and ABXFC, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust property in trust for such purpose (i) an amount in Dollars, sufficient to pay and discharge the entire indebtedness on such ABXFC Notes not theretofore delivered to the Trustee for cancellation, for principal and interest to the date of such deposit (in the case of ABXFC Notes which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be, or (ii) the Barrick Notes deliverable in connection with an exchange under Article Thirteen for ABXFC Notes not theretofore delivered to the Trustee for cancellation;
     (2) ABXFC or the Guarantors have paid or caused to be paid all other sums payable hereunder by ABXFC or the Guarantors, as the case may be; and
     (3) ABXFC has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such Series have been complied with.
          Notwithstanding the satisfaction and discharge of this Indenture, the provisions of Section 1005, the obligations of ABXFC to the Trustee under Section 606, the obligations of the Trustee to any Authenticating Agent under Section 611 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section, the provisions of Sections 113, 114, any applicable provisions of Article Three, 1002 and 1003 and the obligations of the Trustee under Section 402 shall survive such satisfaction and discharge and remain in full force and effect.
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 ABXFC Notes and this Indenture, to the payment, either directly or through any Paying Agent (including ABXFC, the Administrator or the Guarantors acting as Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and interest, for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default .
          “Event of Default”, wherever used herein with respect to ABXFC Notes of any Series, means any one of the following events (whatever the reason for such Event of Default
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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) the declaration of acceleration in respect of the Barrick Notes of such Series following the occurrence and continuation of an Event of Default (as defined in the Barrick Indenture) in respect of such Series;
     (2) default in the payment of the principal of any ABXFC Note of that Series upon a redemption or failure to exchange any ABXFC Note of that Series on the Note Exchange Date; or
     (3) default in the payment of any interest on any ABXFC Note of that Series, when such interest becomes due and payable, and continuance of such default for a period of 30 days; or
     (4) any of the Guarantees cease to be in full force and effect and such default continues for 10 days after written notice to ABXFC, the Guarantors and the Trustee by Holders of at least 25% in principal amount of all Outstanding ABXFC Notes affected thereby, or any Guarantor denies or disaffirms its obligations under any of the Guarantees; or
     (5) ABXFC or any Guarantor pursuant to or under or within the meaning of any Bankruptcy Law:
     (i) commences a proceeding or makes an application seeking a Bankruptcy Order;
     (ii) consents to the making of a Bankruptcy Order or the commencement of any proceeding or application seeking the making of a Bankruptcy Order against it;
     (iii) consents to the appointment of a Custodian of it or for any substantial part of its property;
     (iv) makes a general assignment for the benefit of its creditors or files a proposal or notice of intention to make a proposal or other scheme of arrangement involving the rescheduling, reorganizing or compromise of its indebtedness;
     (v) files an assignment in bankruptcy; or
     (vi) consents to the filing of an assignment in bankruptcy or the appointment of or taking possession by a Custodian;
     (6) a court of competent jurisdiction in any involuntary case or proceeding makes a Bankruptcy Order against ABXFC or any Guarantor, and such Bankruptcy Order remains unstayed and in effect for 90 consecutive days; or
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     (7) a Custodian shall be appointed out of court with respect to ABXFC or any Guarantor, or with respect to all or any substantial part of the property of ABXFC or any Guarantor and such appointment shall not have been vacated, discharged, or stayed or bonded pending appeal within 90 days, or any encumbrancer shall take possession of all or any substantial part of the property of ABXFC or any Guarantor and such possession shall not have reverted to ABXFC or any Guarantor, as applicable, within 90 days.
          “Bankruptcy Law” means, in the case of BGC, Bankruptcy and Insolvency Act (Canada), Companies’ Creditors Arrangement Act (Canada), Winding-Up & Restructuring Act (Canada), or any other Canadian federal or provincial law and, in the case of ABXFC, the law of the Cayman Islands relating to bankruptcy, insolvency, winding-up, liquidation, dissolution, reorganization or relief of debtors or any similar law now or hereafter in effect for the relief from, or otherwise affecting, creditors and, in the case of any other Guarantor, the law of the jurisdiction of such Guarantor relating to bankruptcy, insolvency, winding-up, liquidation, dissolution, reorganization or relief of debtors or any similar law now or hereafter in effect for the relief from, or otherwise affecting, creditors. “Custodian” means any receiver, interim receiver, receiver and manager, trustee, assignee, liquidator, sequestrator, monitor, custodian or similar official or agent or any other Person with like powers. “Bankruptcy Order” means an order made by a court of competent jurisdiction in a proceeding pursuant to or within the meaning of any Bankruptcy Law, containing an adjudication of bankruptcy or insolvency, or providing for liquidation, winding-up, dissolution or reorganization, or appointing a Custodian of a debtor or of all or any substantial part of a debtor’s property, or providing for the staying, arrangement, adjustment or compromise of indebtedness or other relief of a debtor.
SECTION 502. Acceleration of Maturity; Rescission and Annulment .
          If an Event of Default described in clause (1), (2), (3) or (4) of Section 501 with respect to ABXFC Notes 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 ABXFC Notes of that Series may declare the principal amount of all of the Outstanding ABXFC Notes of that Series and any accrued but unpaid interest thereon to be due and payable immediately, by a notice in writing to ABXFC and the Guarantors (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified portion thereof) and any accrued but unpaid interest thereon shall become immediately due and payable. If an Event of Default described in clauses (5), (6) or (7) of Section 501 occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of all the ABXFC Notes then Outstanding (as a class) may declare the principal amount of all of the Outstanding ABXFC Notes and any accrued but unpaid interest thereon to be due and payable immediately, by a notice in writing to ABXFC and the Guarantors (and to the Trustee if given by the Holders), and upon any such declaration such principal amount (or specified portion thereof) and any accrued but unpaid interest thereon shall become immediately due and payable.
          At any time after a declaration of acceleration with respect to ABXFC Notes of any Series (or of all Series, as the case may be) has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this
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Article, the Holders of a majority in principal amount of the Outstanding ABXFC Notes of such Series (or of all Series, as the case may be), by written notice to ABXFC, the Guarantors and the Trustee, may rescind and annul such declaration and its consequences if:
     (1) ABXFC or any Guarantor has paid or deposited with the Trustee a sum sufficient to pay in Dollars:
     (A) all overdue interest, if any, on all Outstanding ABXFC Notes of that Series (or of all Series, as the case may be);
     (B) all unpaid principal of all Outstanding ABXFC Notes of that Series (or of all Series, as the case may be) which has become due otherwise than by such declaration of acceleration, and interest on such unpaid principal at the rate or rates prescribed therefor in such ABXFC Notes;
     (C) to the extent lawful, interest on overdue interest, if any, at the rate or rates prescribed therefor in such ABXFC Notes; 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 ABXFC Notes of that Series (or of all Series, as the case may be), other than the non-payment of amounts of principal of or interest on ABXFC Notes of that Series (or of all Series, as the case may be) which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee .
     ABXFC covenants that if:
     (1) default is made in the payment of any installment of interest on any ABXFC Note issued by ABXFC and 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 any ABXFC Note issued by ABXFC upon a redemption or there is a failure to exchange any ABXFC Note on the Note Exchange Date,
then ABXFC will, upon demand of the Trustee, pay to the Trustee for the benefit of the Holders of such ABXFC Notes, the whole amount then due and payable on such ABXFC Notes, and interest on any overdue principal and to the extent lawful on any overdue interest, at the rate or rates prescribed therefor in such ABXFC Notes, 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.
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          If ABXFC fails to pay such amounts forthwith upon such demand, the Trustee, in its own name as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against ABXFC, any Guarantor or any other obligor upon such ABXFC Notes and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of ABXFC, any Guarantor or any other obligor upon such ABXFC Notes, wherever situated.
          If an Event of Default with respect to ABXFC Notes of any Series (or of all Series, as the case may be) occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of ABXFC Notes of such Series (or of all Series, as the case may be) 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 the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to ABXFC, any Guarantor or any other obligor upon the ABXFC Notes or the property of ABXFC, any Guarantor or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the ABXFC Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on ABXFC or any Guarantor for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise:
     (i) to file and prove a claim for the whole amount of principal owing and unpaid in respect of the ABXFC Notes or the Guarantees and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding; and
     (ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 606.
          Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the ABXFC Notes or the Guarantees or the rights of any
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Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of ABXFC Notes .
          All rights of action and claims under this Indenture, the ABXFC Notes or the Guarantees may be prosecuted and enforced by the Trustee without the possession of any of the ABXFC Notes 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 ABXFC Notes 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 interest upon presentation of the ABXFC Notes, 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 606;
           Second : To the payment of the amounts then due and unpaid for principal of and interest on the ABXFC Notes 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 ABXFC Notes for principal and interest respectively; and
           Third : The balance, if any, to the Person or Persons entitled thereto.
SECTION 507. Limitation on Suits .
          No Holder of any ABXFC Note of any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, the ABXFC Notes or the Guarantees, 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 ABXFC Notes of that Series;
     (2) the Holders of not less than 25% in principal amount of the Outstanding ABXFC Notes of all Series affected by such Event of Default (determined as provided in Section 502 and, if more than one Series of ABXFC Notes, as one class), 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;
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     (3) such Holder or Holders have offered to the Trustee reasonable indemnity 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 or more in principal amount of the Outstanding ABXFC Notes of all Series affected by such Event of Default (determined as provided in Section 502 and, if more than one Series of ABXFC Notes, as one class),
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Outstanding ABXFC Notes of such affected Series, 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 Holders of Outstanding ABXFC Notes of such affected Series. For purposes of clarity, it is hereby understood and agreed that an Event of Default described in clause (1), or (2) of Section 501 with respect to the ABXFC Notes of any Series shall, for purposes of this Section 507, be deemed to affect only such Series of ABXFC Notes.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest .
          Notwithstanding any other provision in this Indenture, the Holder of any ABXFC Note shall have the right, which is absolute and unconditional, to receive payment, as provided herein and in such ABXFC Note (and the Guarantees endorsed thereon) of the principal of and interest on, such ABXFC Note on the respective Stated Maturities expressed in such ABXFC Note (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, ABXFC, the Guarantors, the Trustee and the Holders of ABXFC Notes 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 ABXFC Notes, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of ABXFC Notes is intended to be exclusive of any
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other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not, to the extent permitted by law, 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 ABXFC Note 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 not less than a majority in principal amount of the Outstanding ABXFC Notes of all Series affected by an Event of Default (determined as provided in Section 502 and, if more than one Series of ABXFC Notes, as one class) shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Outstanding ABXFC Notes of such affected Series (and the Guarantees in respect thereof), provided in each case:
     (1) such direction shall not be in conflict with any rule of law or with this Indenture;
     (2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
     (3) the Trustee need not take any action which might expose the Trustee to personal liability or be unduly prejudicial to the Holders of Outstanding ABXFC Notes of such affected Series not joining therein.
          For purposes of clarity, it is hereby understood and agreed that an Event of Default described in clause (1) or (2) of Section 501 with respect to the ABXFC Notes of any Series shall, for purposes of this Section 512, be deemed to affect only such Series of ABXFC Notes.
SECTION 513. Waiver of Past Defaults .
          Subject to Section 502, the Holders of not less than a majority in principal amount of the Outstanding ABXFC Notes of all Series with respect to which a Default shall have occurred and be continuing (as one class if more than one Series) may on behalf of the Holders of all the Outstanding ABXFC Notes of such affected Series waive any such past Default, and its consequences, except a Default
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     (1) in respect of the payment of the principal of or interest on any ABXFC Note, or
     (2) in respect of a covenant or provision which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding ABXFC Note of such affected Series.
          Upon any such waiver, any such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. For purposes of clarity, it is hereby understood and agreed that an Event of Default described in clause (1) or (2) of Section 501 with respect to the ABXFC Notes of any Series shall, for purposes of this Section 513, be deemed to affect only such Series of ABXFC Notes.
SECTION 514. Waiver of Stay or Extension Laws .
          Each of ABXFC and the Guarantors covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and each of ABXFC and the Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
SECTION 515. Undertaking for Costs .
          All parties to this Indenture agree, and each Holder of any ABXFC Note by its acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of any undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding ABXFC Notes, or to any suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any ABXFC Note (or under any Guarantee) on or after the respective Stated Maturities expressed in such ABXFC Note (or, in the case of redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults .
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          Within 90 days after the occurrence of any Default hereunder with respect to the ABXFC Notes of any Series, the Trustee shall transmit a notice of such default hereunder known to the Trustee, unless such Default shall have been cured or waived; provided , however , that, except in the case of a Default in the payment of the principal of or interest on any ABXFC Note of such Series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders of ABXFC Notes of such Series; and provided further that in the case of any Default of the character specified in Section 501(3) with respect to ABXFC Notes of such Series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof.
          ABXFC and the Guarantors shall be required to furnish the Trustee, within 30 days after it becomes aware of the occurrence thereof, written notice of any event which would constitute an Event of Default under Section 501(4) above.
SECTION 602. Certain Rights of Trustee .
     (1) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
     (2) any request or direction of ABXFC mentioned herein shall be sufficiently evidenced by the Issuer Request or Issuer Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
     (3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’ Certificate;
     (4) the Trustee may consult with counsel and the written 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) except during a default, the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of ABXFC Notes of any Series pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity 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
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indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of ABXFC and the Guarantors 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; and
     (8) the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture.
          The Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of ABXFC Notes .
          The recitals contained herein and in the ABXFC Notes, except for the Trustee’s certificates of authentication, shall be taken as the statements of ABXFC and the Guarantors, 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 ABXFC Notes, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the ABXFC Notes and perform its obligations hereunder. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by ABXFC of ABXFC Notes or the proceeds thereof.
SECTION 604. May Hold ABXFC Notes .
          The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of ABXFC or of the Trustee, in its individual or any other capacity, may become the owner or pledgee of ABXFC Notes, may otherwise deal with ABXFC with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 605. Money Held in Trust .
          Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with ABXFC.
SECTION 606. Compensation and Reimbursement .
          Each of ABXFC and the Guarantors, jointly and severally, agrees:
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     (1) to pay to the Trustee from time to time such reasonable compensation as ABXFC and the Trustee shall from time to time agree in writing, for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
     (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
     (3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith 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 or liability in connection with the exercise or performance of any of its powers or duties hereunder.
          The obligations of ABXFC under this Section to compensate the Trustee, to pay or reimburse the Trustee for expenses, disbursements and advances and to indemnify and hold harmless the Trustee shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture. As security for the performance of such obligations of ABXFC, the Trustee shall have a claim prior to the ABXFC Notes upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of or interest on particular ABXFC Notes.
          When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 501(4), (5) or (6), the expenses (including reasonable charges and expense of its counsel) of and the compensation for such services are intended to constitute expenses of administration under any applicable bankruptcy, insolvency or other similar law.
          The provisions of this Section shall survive the termination of this Indenture.
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests .
          There shall be at all times a Trustee hereunder which shall be eligible to act as Trustee and shall have a combined capital and surplus (together with that of its parent, if applicable) of at least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of Federal, State, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
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SECTION 608. Resignation and Removal; Appointment of Successor .
          (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 609.
          (b) The Trustee may resign at any time with respect to the ABXFC Notes of one or more Series by giving written notice thereof to ABXFC. If the instrument of acceptance by a successor Trustee required by Section 609 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the ABXFC Notes of such Series.
          (c) The Trustee may be removed at any time with respect to the ABXFC Notes of any Series by Act of the Holders of not less than a majority in principal amount of the Outstanding ABXFC Notes of such Series, delivered to the Trustee and to ABXFC.
          (d) If at any time:
     (1) the Trustee shall cease to be eligible under Section 607 and shall fail to resign after written request therefor by ABXFC or by any Holder who has been a bona fide Holder of an ABXFC Note for at least six months, or
     (2) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) ABXFC, by a Board Resolution, may remove the Trustee with respect to all ABXFC Notes or the ABXFC Notes of such Series, or (ii) any Holder who has been a bona fide Holder of an ABXFC Note 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 ABXFC Notes of such Series and the appointment of a successor Trustee or Trustees.
          (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the ABXFC Notes of one or more Series, ABXFC, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the ABXFC Notes of that or those Series (it being understood that any such successor Trustee may be appointed with respect to the ABXFC Notes of one or more or all of such Series and that at any time there shall be only one Trustee with respect to the ABXFC Notes of any particular Series). If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the ABXFC Notes of any Series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding ABXFC Notes of such Series delivered to ABXFC and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee with respect to
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the ABXFC Notes of such Series and to that extent supersede the successor Trustee appointed by ABXFC. If no successor Trustee with respect to the ABXFC Notes of any Series shall have been so appointed by ABXFC or the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of an ABXFC Note 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 ABXFC Notes of such Series.
          (f) ABXFC shall give notice of each resignation and each removal of the Trustee with respect to the ABXFC Notes of any Series and each appointment of a successor Trustee with respect to the ABXFC Notes of any Series to the Holders of ABXFC Notes of such Series in the manner provided for in Section 106. Each notice shall include the name of the successor Trustee with respect to the ABXFC Notes of such Series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor .
          (a) In case of the appointment hereunder of a successor Trustee with respect to all ABXFC Notes, every such successor Trustee so appointed shall execute, acknowledge and deliver to ABXFC, to the Guarantors 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 ABXFC, the Guarantors or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
          (b) In case of the appointment hereunder of a successor Trustee with respect to the ABXFC Notes of one or more (but not all) Series, ABXFC, the Guarantors, the retiring Trustee and each successor Trustee with respect to the ABXFC Notes of one or more Series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the ABXFC Notes 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 ABXFC Notes, 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 ABXFC Notes 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 ABXFC Notes of that or those Series
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to which the appointment of such successor Trustee relates; but, on request of ABXFC, any Guarantor or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the ABXFC Notes of that or those Series to which the appointment of such successor Trustee relates. Whenever there is a successor Trustee with respect to one or more (but less than all) Series of securities issued pursuant to this Indenture, the terms “Indenture” and “ABXFC Notes” shall have the meanings specified in the provisos to the respective definitions of those terms in Section 101 which contemplate such situation.
          (c) Upon request of any such successor Trustee, ABXFC and the Guarantors shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
          (d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to Business .
          Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any ABXFC Notes 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 ABXFC Notes so authenticated with the same effect as if such successor Trustee had itself authenticated such ABXFC Notes. In case any of the ABXFC Notes shall not have been authenticated by such predecessor Trustee, any successor Trustee may authenticate such ABXFC Notes either in the name of any predecessor hereunder or in the name of the successor Trustee. In all such cases such certificates shall have the full force and effect which this Indenture provides for the certificate of authentication of the Trustee; provided , however , that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate ABXFC Notes in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
SECTION 611. Appointment of Authenticating Agent .
          At any time when any of the ABXFC Notes remain Outstanding, the Trustee may appoint an Authenticating Agent or Agents with respect to one or more Series of ABXFC Notes which shall be authorized to act on behalf of the Trustee to authenticate ABXFC Notes of such Series and the Trustee shall give written notice of such appointment to all Holders of ABXFC Notes of the Series with respect to which such Authenticating Agent will serve, in the manner provided for in Section 106. ABXFC Notes 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
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hereunder. Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee, and a copy of such instrument shall be promptly furnished to ABXFC. Wherever reference is made in this Indenture to the authentication and delivery of ABXFC Notes 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 ABXFC 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 corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect specified in this Section.
          Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
          An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to ABXFC. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to ABXFC. 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 ABXFC and shall give written notice of such appointment to all Holders of ABXFC Notes of the Series with respect to which such Authenticating Agent will serve, in the manner provided for in Section 106. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
          The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 606.
          If an appointment with respect to one or more Series is made pursuant to this Section, the ABXFC Notes of such Series may have endorsed thereon, in addition to the
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Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:
          Dated:                     
          This is one of the ABXFC Notes of the Series designated therein referred to in the within-mentioned Indenture.
 	 	 	 	 	 	 	
 	 	THE BANK OF NEW YORK	 	 	
 	 	                            as Trustee	 	 	
 	 	 	 	 	 	 	
 	 	By	 	 	 	 	
 	 	 	 	 	 	 	
 	 	 	 	           as Authenticating Agent	 	 	
 	 	 	 	 	 	 	
 	 	By	 	 	 	 	
 	 	 	 	 	 	 	
 	 	 	 	          Authorized Officer	 	 	
ARTICLE SEVEN
HOLDERS’ LISTS AND REPORTS BY TRUSTEE, ABXFC AND GUARANTORS
SECTION 701. Disclosure of Names and Addresses of Holders .
          Every Holder of ABXFC Notes, by receiving and holding the same, agrees with ABXFC, the Guarantors and the Trustee that none of ABXFC, the Guarantors or the Trustee or any agent of any of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request.
SECTION 702. [Intentionally Omitted] .
SECTION 703. ABXFC or the Administrator to Furnish Trustee Names and Addresses of Holders
          ABXFC or the Administrator will furnish or cause to be furnished to the Trustee:
     (1) semi-annually, not later than 15 days after the regular record date for interest for each Series of ABXFC Notes, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of ABXFC Notes of such Series as of such Regular Record Date, and
     (2) at such other times as the Trustee may request in writing, within 30 days after the receipt by ABXFC 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,
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provided, however , that so long as the Trustee is the Security Registrar, no such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, AMALGAMATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. ABXFC May Not Amalgamate or Consolidate, etc., .
          ABXFC may not consolidate or amalgamate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any other Person, except in connection with the exchange of the ABXFC Notes for the Barrick Notes pursuant to Article Thirteen, without the consent of the Guarantors.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders .
          Without the consent of any Holders, ABXFC and the Guarantors, when authorized by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
     (1) to add to the covenants of ABXFC or the Guarantors for the benefit of the Holders of all or any Series of ABXFC Notes (and if such covenants are to be for the benefit of less than all Series of ABXFC Notes, stating that such covenants are being included solely for the benefit of such Series) or to surrender any right or power herein conferred upon ABXFC or the Guarantors, as the case may be; or
     (2) to add any additional Events of Default (and if such Events of Default are to be for the benefit of less than all Series of ABXFC Notes, stating that such Events of Default are being included solely for the benefit of such Series); or
     (3) to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become effective only when there is no ABXFC Note Outstanding of any Series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or
     (4) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the ABXFC Notes of one or more Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 609(b); or
     (5) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture;
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provided such action under clause (B) shall not adversely affect the interests of the Holders of ABXFC Notes of any Series (including, without limitation, their rights under any Guarantees) in any material respect; or
     (6) to add any additional Guarantor designated by BIBC pursuant to Section 1201.
SECTION 902. Supplemental Indentures with Consent of Holders .
          With the consent of the Holders of not less than a majority in principal amount of all Outstanding ABXFC Notes of all Series affected by such supplemental indenture, by Act of said Holders delivered to ABXFC, the Guarantors and the Trustee, ABXFC and the Guarantors, when authorized by or pursuant to a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture which affect such Series of ABXFC Notes or of modifying in any manner the rights of the Holders of ABXFC Notes of such Series under this Indenture; provided , however , that no such supplemental indenture shall, without the consent of the Holder of each Outstanding ABXFC Note of such Series:
     (1) change the Stated Maturity of the principal or any installment of interest on any ABXFC Note of such Series, or reduce the principal amount thereof or the rate of interest thereon, or the Redemption Price thereof, change any obligation of ABXFC in respect of the exchange of the ABXFC Notes for the Barrick Notes under Article Thirteen, or change any Place of Payment where, or the Currency in which, any ABXFC Note of such Series or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or
     (2) reduce the percentage in principal amount of the Outstanding ABXFC Notes of such Series required for any such supplemental indenture, for any waiver of compliance with certain provisions of this Indenture which affect such Series or certain defaults applicable to such Series hereunder and their consequences provided for in Section 513 of this Indenture, or reduce the requirements of Section 1604 for quorum or voting with respect to ABXFC Notes of such Series, or
     (3) modify any of the provisions of this Section, Section 513, except to increase any such percentage or to provide that certain other provisions of this Indenture which affect such Series cannot be modified or waived without the consent of the Holder of each Outstanding ABXFC Note of such Series.
          Any such supplemental indenture adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, or modifying in any manner the rights of the Holders of ABXFC Notes of such Series, shall not affect the rights under this Indenture of the Holders of ABXFC Notes of any other Series.
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          It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures .
          In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures .
          Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of ABXFC Notes theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Reference in ABXFC Notes to Supplemental Indentures .
          ABXFC Notes 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 ABXFC or the Guarantors shall so determine, new ABXFC Notes of any Series and any Guarantees endorsed thereon so modified as to conform, in the opinion of the Trustee, ABXFC and the Guarantors, to any such supplemental indenture may be prepared and executed by ABXFC and the Guarantors and authenticated and delivered by the Trustee in exchange for Outstanding ABXFC Notes of such Series.
SECTION 906. Notice of Supplemental Indentures .
          Promptly after the execution by ABXFC, the Guarantors and the Trustee of any supplemental indenture pursuant to the provisions of Section 902, ABXFC shall give notice thereof to the Holders of each Outstanding ABXFC Note affected, in the manner provided for in Section 106, setting forth in general terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal and Interest .
          ABXFC covenants and agrees for the benefit of the Holders of each Series of ABXFC Notes issued by ABXFC that it will duly and punctually pay the principal of and interest
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on the ABXFC Notes of that Series in accordance with the terms of the ABXFC Notes of such Series and this Indenture.
SECTION 1002. Maintenance of Office or Agency .
          ABXFC will maintain in each Place of Payment for any Series of ABXFC Notes an office or agency where ABXFC Notes of that Series may be presented or surrendered for payment, where ABXFC Notes of that Series may be surrendered for registration of transfer or exchange and where notices and demands to or upon ABXFC in respect of the ABXFC Notes of that Series and this Indenture may be served. The Guarantors will maintain an office or agency in The City of New York where notices and demands to or upon the Guarantors in respect of the ABXFC Notes of that Series and this Indenture may be served.
          ABXFC and the Guarantors will give prompt written notice to the Trustee of the location, and any change in the location, of any such office or agency. If at any time ABXFC or the Guarantors 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 ABXFC and the Guarantors hereby appoint the same as their agents to receive such respective presentations, surrenders, notices and demands.
          ABXFC may also from time to time designate one or more other offices or agencies where the ABXFC Notes of one or more Series may be presented or surrendered for any or all such purposes and may from time to time rescind any such designation; provided , however , that no such designation or rescission shall in any manner relieve ABXFC of its obligation to maintain an office or agency in accordance with the requirements set forth above for ABXFC Notes of any Series for such purposes. ABXFC 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. ABXFC hereby designates as a Place of Payment for each Series of ABXFC Notes the office or agency of the Trustee in the Borough of Manhattan, The City of New York and initially appoints the Trustee at its Corporate Trust Office as Paying Agent in such city and as its agent to receive all such presentations, surrenders, notices and demands.
SECTION 1003. Money for ABXFC Notes Payments to Be Held in Trust .
          If ABXFC or the Guarantors shall at any time act as Paying Agent with respect to any Series of ABXFC Notes and, ABXFC or the Guarantors, as the case may be, will, on or before each due date of the principal of or interest on any of the ABXFC Notes of that Series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in Dollars sufficient to pay the principal of or interest on ABXFC Notes of such Series so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
          Whenever ABXFC shall have one or more Paying Agents for any Series of ABXFC Notes and, ABXFC or the Guarantors, as the case may be, will, prior to or on each due date of the principal of or interest on any ABXFC Notes of that Series, deposit with a Paying Agent a sum sufficient to pay the principal or interest so becoming due, such sum to be held in
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trust for the benefit of the Persons entitled to such principal or interest, and (unless such Paying Agent is the Trustee) ABXFC will promptly notify the Trustee of its action or failure so to act.
          ABXFC will cause the bank through which payment of funds to the Paying Agent will be made to deliver to the Paying Agent by 10:00 a.m. (New York Time) two Business Days prior to the due date of such payment an irrevocable confirmation (by tested telex or authenticated Swift MT 100 Message) of its intention to make such payment.
          ABXFC will cause each Paying Agent (other than the Trustee) for any Series of ABXFC Notes 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) hold all sums held by it for the payment of the principal of and interest on ABXFC Notes of such Series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
     (2) give the Trustee notice of any default by ABXFC in the making of any payment of principal of or interest on the ABXFC Notes of such Series; and
     (3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
          ABXFC may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in trust by ABXFC or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which sums were held by ABXFC or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.
          Except as provided in the ABXFC Notes of any Series, any money deposited with the Trustee or any Paying Agent, or then held by ABXFC or any Guarantor, in trust for the payment of the principal of or interest on any ABXFC Note of any Series, and remaining unclaimed for two years after such principal or interest has become due and payable shall be paid to ABXFC or such Guarantor, or (if then held by ABXFC or such Guarantor) shall be discharged from such trust; and the Holder of such ABXFC Note shall thereafter, as an unsecured general creditor, look only to ABXFC or such Guarantor, as the case may be, for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of ABXFC or such Guarantor, as the case may be, 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 written direction and at the expense of ABXFC cause to be published once, in an Authorized Newspaper, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to ABXFC or such Guarantor, as the case may be.
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SECTION 1004. Statement as to Compliance .
          ABXFC and the Guarantors will deliver to the Trustee, within 120 days after the end of each fiscal year (which as of the date hereof ends on the 31 st day of December), a brief certificate from the Administrator, in the case of ABXFC, or principal executive officer, principal financial officer or principal accounting officer in the case of each Guarantor as to his or her knowledge of ABXFC’s or a Guarantor’s compliance with all conditions and covenants under this Indenture and as to any default in such performance. For purposes of this Section 1004, such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture.
SECTION 1005. Additional Amounts .
          If ABXFC receives Additional Amounts pursuant to the terms of the Barrick Notes of a Series, such amounts will be used to fund payment of interest to holders of the ABXFC Notes of such Series.
SECTION 1006. Limitation or Amendment of Memorandum and Articles of Association .
          ABXFC may not amend its Memorandum and Articles of Association without the consent of the Guarantors.
SECTION 1007. Limitation or Payment of Dividends .
          ABXFC may not declare or pay any dividend or distribute any property in respect of the shares of ABXFC without the consent of the Guarantors.
SECTION 1008. Corporate Existence .
          Subject to Article Eight, ABXFC and the Guarantors will do or cause to be done all things necessary to preserve and keep in full force and effect its existence (corporate or other) and the rights (charter and statutory) and franchises of ABXFC or the Guarantors, as the case may be; provided , however , that ABXFC or the Guarantors, as the case may be, shall not be required to preserve any such right or franchise if ABXFC or the Guarantors, as the case may be, shall determine that the preservation thereof is no longer desirable in the conduct of the business of ABXFC and the Guarantors and its Subsidiaries as a whole, as the case may be.
SECTION 1009. Limitation on Issuance of Shares .
          ABXFC may not issue any shares without the consent of the Guarantors.
SECTION 1010. U.S. Federal Income Tax Treatment .
          For U.S. federal income tax purposes, ABXFC shall treat the ABXFC Notes in a manner consistent with the U.S. federal income tax treatment of the ABXFC Notes as indebtedness of BIBC (and of the Joint Obligors to the extent of their obligations thereunder).
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ARTICLE ELEVEN
VOTING OF THE BARRICK NOTES
SECTION 1101. Voting of the Barrick Notes .
          In the event that ABXFC receives a request for ABXFC’s consent to any amendment, modification or waiver of a Barrick Note or the Barrick Indenture, or any document thereunder, or relating thereto, or receives any other solicitation for any action with respect to such Barrick Note, ABXFC shall within five Business Days mail a notice of such proposed amendment, modification, waiver or solicitation to each holder of record of the ABXFC Notes of the Series relating to such Barrick Notes as of the date of such request. ABXFC shall request instructions from such Holders of ABXFC Notes as to what action to take in response to such request. ABXFC shall consent or vote, or refrain from consenting or voting, in the same proportion (based on the outstanding principal amount of the ABXFC Notes) as such ABXFC Notes were actually voted or not voted by the holders thereof as of the date determined by ABXFC prior to the date such vote or consent as a holder of Barrick Notes is required; provided, however, that, ABXFC shall at no time direct the Depositary to vote in favor of or consent to (i) any matter which would alter the timing or amount of any payment on such Barrick Note, without the consent of the Holders of ABXFC Notes representing 100% of the aggregate Voting Rights of such ABXFC Notes, or (ii) which would result in the exchange or substitution of such Barrick Note pursuant to a plan for the refunding or refinancing of such Barrick Note without the consent of the Holders of ABXFC Notes representing 100% of the aggregate Voting Rights of the ABXFC Notes of such Series. ABXFC shall have no liability for any failure to act resulting from such late return by Holders of ABXFC Notes of, or failure to return, directions requested by ABXFC from such Holders of ABXFC Notes. “Voting Rights” means, in respect of an ABXFC Note, one vote in respect of each $100,000 of outstanding principal amount of such note. ABXFC Notes held by the Guarantors will not be entitled to any voting right on matters submitted to a vote of the ABXFC Noteholders.
ARTICLE TWELVE
ADDITIONAL GUARANTEES
SECTION 1201. Designation of Additional Guarantors .
          If BIBC designates an affiliate to act as an additional Joint Obligor for the Barrick Notes pursuant to the terms of the Barrick Indenture, BIBC and each existing Joint Obligor shall execute, and BIBC shall procure that such additional Joint Obligor executes, a supplemental indenture to this Indenture in the form set forth in Exhibit D hereto and a Guarantee in the form set forth in Section 1503, and delivers an Officers’ Certificate and Opinion of Counsel in respect of enforceability to the Trustee in connection with such supplemental indenture and Guarantee. Such supplemental indenture shall provide that each Joint Obligor (including the additional Joint Obligor) shall be an additional Guarantor under this Indenture and shall be liable, with respect to any amount due under the Guarantees, for such amount multiplied by the Joint Obligor Fraction in respect of such Joint Obligor and that BGC and BIBC shall be jointly and severally liable in full with respect to any amount due under the Guarantees. BIBC shall be deemed to have designated BMC as an additional Guarantor pursuant to this Section 1201 on the date hereof.
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ARTICLE THIRTEEN
MANDATORY EXCHANGE
SECTION 1301. Mandatory Exchange on the Note Exchange Date .
          On the Note Exchange Date, (i) the Series A ABXFC Notes and the related Guarantees will be mandatorily exchanged for the same principal amount of Series A Barrick Notes and the related guarantee of the obligations of BIBC and the Joint Obligors under the Series A Barrick Notes and (ii) the Series B ABXFC Notes and the related Guarantees will be mandatorily exchanged for the same principal amount of Series B Barrick Notes and the related guarantee of the obligations of BIBC and the Joint Obligors under the Series B Barrick Notes.
SECTION 1302. Effect of Exchange on Interest Payments .
          Interest, if any, that accrues on the ABXFC Notes of a Series between (i) the Interest Payment Date immediately preceding the Note Exchange Date and (ii) the Note Exchange Date will be paid to holders of the corresponding Series of Barrick Notes, on the first Interest Payment Date (as defined in the Barrick Indenture) in respect of such Barrick Notes following the Note Exchange Date.
SECTION 1303. Delivery upon Exchange of ABXFC Notes .
          On the Business Day following the conclusion of the Revolving Period, ABXFC shall deliver to the Trustee through the Depositary, for the benefit of the Holders of the Outstanding ABXFC Notes, Barrick Notes in accordance with Section 1301 hereof, credited to an account at the Depositary in the name of the Trustee (in its capacity as Barrick Note Trustee), or its nominee, as custodian for the Holders of the ABXFC Notes.
SECTION 1304. Registration of Barrick Notes .
          Upon such exchange, each Barrick Note shall be registered in the name of the Holder of, and in the same denominations as, the ABXFC Note for which it was exchanged (unless such a Holder shall have instructed the Security Registrar through instructions from the Depositary and the Participant or Indirect Participant, in which case the applicable Barrick Note shall be registered in such name or names and in such authorized denomination or denominations as such Holder has so instruct the Security Registrar, provided that no such registration shall be made unless such Holder has paid any transfer and other taxes required by reason of such registration in a name other than that of the registered Holder of the ABXFC Note or has established to the satisfaction of ABXFC that such tax either has been paid or is not payable, as provided in Section 1305).
SECTION 1305. Charges and Taxes .
          BIBC will pay all stamp transfer and similar taxes attributable to the delivery of the Barrick Notes; provided, however, that BIBC shall not be required to pay any such tax or taxes that may be payable in respect of any registration of a Barrick Note in a name other than that of the registered Holder of the ABXFC Notes surrendered in respect of the ABXFC Notes evidenced thereby, other than in the name of the Trustee, as custodian for such Holder, and
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ABXFC shall not be required to deliver such Barrick Notes unless or until the Person or Persons requesting the transfer or registration thereof shall have paid to BIBC the amount of such tax or shall have established to the satisfaction of BIBC that such tax has been paid.
ARTICLE FOURTEEN
[INTENTIONALLY OMITTED]
ARTICLE FIFTEEN
GUARANTEE
SECTION 1501. Guarantee .
          Each Guarantor hereby unconditionally and irrevocably, guarantees to each Holder of an ABXFC Note of each Series authenticated and delivered by the Trustee and to the Trustee on behalf of each such Holder, and the due and punctual payment of the principal of and interest on such ABXFC Note, 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; provided , however , that each additional Guarantor who becomes liable under a Guarantee pursuant to Article 12 shall be liable only to the extent set forth in such Article 12. In case of the failure of ABXFC punctually to make any such payment of principal or interest that may be payable with respect to any ABXFC Note, each Guarantor hereby agrees, to the extent of its liability under its Guarantee, 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 ABXFC. BIBC and BGC will be jointly and severally liable for the obligations guaranteed under their Guarantees. With respect to the obligations guaranteed by the Guarantee of a Guarantor who becomes liable under a Guarantee pursuant to Article 12, such obligations will be guaranteed jointly and severally by BIBC, such Guarantor and BGC.
          Each Guarantor hereby agrees that this Guarantee is a guarantee of payment and not of collection and 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 ABXFC Note or this Indenture, any failure to enforce the provisions of any ABXFC Note or this Indenture, or any waiver, modification or indulgence granted to ABXFC with respect thereto or hereto, by the Holder of any ABXFC Note or by the Trustee or by any other circumstance or defense (including fraud in the inducement or other fraud) 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 ABXFC Note, or increase the interest rate thereon, 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 ABXFC, any right to require a proceeding first against ABXFC, protest or notice with respect to any ABXFC Note or the indebtedness evidenced thereby or with respect to any other amounts that may be payable with respect to such ABXFC Note and all demands whatsoever, and covenants that its obligations under this Article Fifteen and the Guarantees will not be discharged except by payment in full of the principal of and interest on the ABXFC Notes.
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          Each Guarantor further agrees that, if any payment made by ABXFC under the ABXFC Notes is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, under any applicable bankruptcy law, equitable cause or any other requirement of applicable law, then, to the extent of such amount required to be refunded, repaid or returned, any such Guarantor’s liability hereunder shall be and remain in full force and effect, as fully as if such payment or proceeds had never been made or received. If, prior to any of the foregoing, any Guarantee shall have been cancelled or surrendered, such Guarantee shall be reinstated in full force and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any such Guarantor in respect of the amount of such payment.
          Each Guarantor shall be subrogated to all rights of the Holder of any ABXFC Note and the Trustee against ABXFC in respect of any amounts paid to such Holder by a Guarantor pursuant to the provisions of this Article Fifteen and its Guarantee of such ABXFC Note; provided , however , that a Guarantor shall not be entitled to enforce or to receive any payments arising out of or based upon such right of subrogation until the principal of and interest on all ABXFC Notes of the same Series issued under this Indenture and any other amounts with respect to such ABXFC Notes shall have been paid in full.
          If any of the principal of interest on or other amounts payable in respect of any ABXFC Note is not recoverable from ABXFC for any reason (including any failure of such obligations to be legal, valid and binding obligations of ABXFC enforceable against ABXFC in accordance with their terms) the Guarantors shall indemnify the Holders for such amounts and shall pay those amounts to the Holders on demand made by the Trustee. This applies whether or not the transaction relating to such obligations was void or illegal or has been subsequently avoided. A valid claim made under this indemnity , as it relates to a Guarantee, may only be made to the extent a corresponding claim under such Guarantee would have been valid and enforceable, but for such Guarantee being otherwise deemed invalid for any reason.
SECTION 1502. Execution and Delivery of Guarantees .
          The Guarantees to be endorsed on the ABXFC Notes of each Series shall include the terms of the guarantees set forth in Section 1501 and any other terms that may be set forth in the form established pursuant to Section 1503 with respect to such Series. Each Guarantor hereby agrees to execute the Guarantees, in a form established pursuant to Section 1503, to be endorsed on each ABXFC Note authenticated and delivered by a Trustee.
          The Guarantees shall be executed on behalf of each Guarantor by its Chairman, its Chief Executive Officer, its President or a Vice President, together with any one of the Secretary, an Assistant Secretary, the Treasurer or Assistant Treasurer of the Parent Guarantor. The signature of any of these officers 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 officers of a Guarantor shall bind such Guarantor, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and
 63 

 

delivery of the ABXFC Notes on which such Guarantees are endorsed or did not hold such offices at the date of such ABXFC Notes.
          The delivery of any ABXFC Note by a Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee endorsed thereon on behalf of any Guarantor. Each Guarantor hereby agrees that its Guarantee set forth in Section 1501 shall remain in full force and effect notwithstanding any failure to endorse a Guarantee on any Guaranteed ABXFC Note.
SECTION 1503. Form of Guarantee
          Guarantees to be endorsed on the ABXFC Notes shall be in substantially the form set forth below:
GUARANTEE
OF
[           ]
          For value received, [      ], a corporation incorporated under the laws of [      ], having its principal executive offices at [      ] (herein called the “Guarantor”, which term includes any successor Person under the Indenture referred to in the ABXFC Note upon which this Guarantee is endorsed), hereby unconditionally and irrevocably guarantees to the Holder of the ABXFC Note 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 and interest on and other amounts that may become payable with respect to such ABXFC Note, 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[; provided , however , that the Guarantor shall be liable for the amount due under this Guarantee multiplied by the Joint Obligor Fraction in respect of such Guarantor]. In case of the failure of ABXFC (as defined in such Indenture), punctually to make any such payment of principal, interest or any other amounts that may become payable with respect to such ABXFC Note , the Guarantor hereby agrees[, to the extent of its liability under this Guarantee,] 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 ABXFC.
          The Guarantor hereby agrees that this Guarantee is a guarantee of payment and not of collection and 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 ABXFC Note or such Indenture, any failure to enforce the provisions of such ABXFC Note or such Indenture, or any waiver, modification or indulgence granted to ABXFC with respect thereto, by the Holder of such ABXFC Note or by the Trustee or by any other circumstance or defense (including fraud in the inducement or other fraud) 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 ABXFC Note, or increase the interest rate thereon or alter the Stated Maturity
 64 

 

thereof. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of ABXFC, any right to require a proceeding first against ABXFC, protest or notice with respect to such ABXFC Note or the indebtedness evidenced thereby or with respect to any other amounts that may be payable with respect to such ABXFC Note 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 and interest on such ABXFC Note.
          The Guarantor further agrees that, if any payment made by ABXFC under the ABXFC Notes is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, under any applicable bankruptcy law, equitable cause or any other requirement of applicable law, then, to the extent of such amount required to be refunded, repaid or returned, the Guarantor’s liability hereunder shall be and remain in full force and effect, as fully as if such payment or proceeds had never been made or received. If, prior to any of the foregoing, this Guarantee shall have been cancelled or surrendered, this Guarantee shall be reinstated in full force and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of the Guarantor in respect of the amount of such payment.
          The Guarantor shall be subrogated to all rights of the Holder of such ABXFC Note and the Trustee against ABXFC in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided , however , that the Guarantor shall not be entitled to enforce or to receive any payments arising out of or based upon such right of subrogation until the principal of and interest on all ABXFC Notes of the same Series issued under such Indenture and any other amounts that may be payable with respect to such ABXFC Notes shall have been paid in full.
          If any of the principal of interest on or other amounts payable in respect of any ABXFC Note is not recoverable from ABXFC for any reason (including any failure of such obligations to be legal, valid and binding obligations of ABXFC enforceable against ABXFC in accordance with their terms) the Guarantors shall indemnify the Holders for such amounts and shall pay those amounts to the Holders on demand made by the Trustee. This applies whether or not the transaction relating to such obligations was void or illegal or has been subsequently avoided. A valid claim made under this indemnity may only be made to the extent a corresponding claim under this Guarantee would have been valid and enforceable, but for the Guarantee being otherwise deemed invalid for any reason.
          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 and interest on the ABXFC Note upon which this Guarantee is endorsed.
          This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication of such ABXFC Note shall have been manually executed by or on behalf of the Trustee under such Indenture.
 65 

 

          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 the date on the face hereof.
 	 	 	 	 	 	 	
 	 	[          ]	 	 	
 	 	 	 	 	 	 	
 	 	By	 	 	 	 	
 	 	 	 	 	 	 	
 	 	Name:	 	 	 	 	
 	 	Title:	 	 	 	 	
 	 	 	 	 	 	 	
 	 	By	 	 	 	 	
 	 	 	 	 	 	 	
 	 	Name:	 	 	 	 	
 	 	Title:	 	 	 	 	
          Reference is made to Article Fifteen for further provisions with respect to the Guarantees.
SECTION 1504. Notice to Trustee .
          Any Guarantor shall give prompt written notice to the Trustee of any fact known to such Guarantor which prohibits the making of any payment to or by the Trustee in respect of the Guarantee pursuant to the provisions of this Article Fifteen.
SECTION 1505. This Article Not to Prevent Events of Default .
          The failure to make a payment on account of principal of or interest on the ABXFC Notes by reason of any provision of this Article will not be construed as preventing the occurrence of an Event of Default.
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1601. Purposes for Which Meetings May Be Called .
          A meeting of Holders of ABXFC Notes of such Series may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of ABXFC Notes of such Series.
SECTION 1602. Call, Notice and Place of Meetings .
          (a) The Trustee may at any time call a meeting of Holders of ABXFC Notes of any Series for any purpose specified in Section 1601, to be held at such time and at such place in The City of New York as the Trustee shall determine. Notice of every meeting of Holders of
 66 

 

ABXFC Notes of any Series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided for in Section 106, not less than 21 nor more than 180 days prior to the date fixed for the meeting.
          (b) In case at any time ABXFC, pursuant to a Board Resolution, the Guarantors or the Holders of at least 10% in principal amount of the Outstanding ABXFC Notes of any Series shall have requested the Trustee to call a meeting of the Holders of ABXFC Notes of such Series for any purpose specified in Section 1601, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then ABXFC, the Guarantors or the Holders of ABXFC Notes of such Series in the amount above specified, as the case may be, may determine the time and the place in The City of New York or in Toronto, Ontario, Canada for such meeting and may call such meeting for such purposes by giving notice thereof as provided in paragraph (a) of this Section.
SECTION 1603. Persons Entitled to Vote at Meetings .
          To be entitled to vote at any meeting of Holders of ABXFC Notes of any Series, a Person shall be (1) a Holder of one or more Outstanding ABXFC Notes of such Series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding ABXFC Notes of such Series by such Holder of Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of ABXFC Notes of any Series shall be the Person entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of ABXFC and the Guarantors and their respective counsel.
SECTION 1604. Quorum; Action .
          The Persons entitled to vote a majority in principal amount of the Outstanding ABXFC Notes of a Series shall constitute a quorum for a meeting of Holders of ABXFC Notes of such Series; provided , however , that, if any action is to be taken at such meeting with respect to a consent or waiver which this Indenture expressly provides may be given by the Holders of not less than a specified percentage in principal amount of the Outstanding ABXFC Notes of a Series, the Persons entitled to vote such specified percentage in principal amount of the Outstanding ABXFC Notes of such Series shall constitute a quorum. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of ABXFC Notes of such Series, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 1602(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of any adjourned meeting shall state expressly the percentage, as provided above, of
 67 

 

the principal amount of the Outstanding ABXFC Notes of such Series which shall constitute a quorum.
          Subject to the foregoing, at the reconvening of any meeting adjourned for lack of a quorum the Persons entitled to vote 25% in principal amount of the Outstanding ABXFC Notes at the time shall constitute a quorum for the taking of any action set forth in the notice of the original meeting.
          Except as limited by the proviso to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the affirmative vote of the Holders of not less than a majority in principal amount of the Outstanding ABXFC Notes of such Series; provided , however , that, except as limited by the proviso to Section 902, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding ABXFC Notes of a Series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of not less than such specified percentage in principal amount of the Outstanding ABXFC Notes of such Series.
          Any resolution passed or decision taken at any meeting of Holders of ABXFC Notes of any Series duly held in accordance with this Section shall be binding on all the Holders of ABXFC Notes of such Series, whether or not present or represented at the meeting.
          Notwithstanding the foregoing provisions of this Section 1604, if any action is to be taken at a meeting of Holders of ABXFC Notes of any Series with respect to any request, demand, authorization, direction, notice, consent, waiver or other action that this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage in principal amount of all Outstanding ABXFC Notes affected thereby, or of the Holders of such Series and one or more additional Series:
     (i) there shall be no minimum quorum requirement for such meeting; and
     (ii) the principal amount of the Outstanding ABXFC Notes of such Series that vote in favor of such request, demand, authorization, direction, notice, consent, waiver or other action shall be taken into account in determining whether such request, demand, authorization, direction, notice, consent, waiver or other action has been made, given or taken under this Indenture.
SECTION 1605. Determination of Voting Rights; Conduct and Adjournment of Meetings .
          (a) Notwithstanding any provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of ABXFC Notes of a Series in regard to proof of the holding of ABXFC Notes of such Series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as its shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of ABXFC Notes shall be proved in
 68 

 

the manner specified in Section 104 and the appointment of any proxy shall be proved in the manner specified in Section 104. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 104 or other proof.
          (b) The Trustee shall, by an instrument in writing appoint a temporary chairman of the meeting, unless the meeting shall have been called by ABXFC, any Guarantor or by Holders of ABXFC Notes as provided in Section 1602(b), in which case ABXFC, such Guarantor or the Holders of ABXFC Notes of the Series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding ABXFC Notes of such Series represented at the meeting.
          (c) At any meeting each Holder of an ABXFC Note of such Series or proxy shall be entitled to one vote for each $1,000 principal amount of Outstanding ABXFC Notes of such Series held or represented by him (determined as specified in the definition of “Outstanding” in Section 101); provided , however , that no vote shall be cast or counted at any meeting in respect of any ABXFC Note challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of an ABXFC Note of such Series or proxy.
          (d) Any meeting of Holders of ABXFC Notes of any Series duly called pursuant to Section 1602 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding ABXFC Notes of such Series represented at the meeting; and the meeting may be held as so adjourned without further notice.
SECTION 1606. Counting Votes and Recording Action of Meetings .
          The vote upon any resolution submitted to any meeting of Holders of ABXFC Notes of any Series shall be by written ballots on which shall be subscribed the signatures of the Holders of ABXFC Notes of such Series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding ABXFC Notes of such Series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of ABXFC Notes of any Series shall be prepared by the Secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 1602 and, if applicable, Section 1604. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to ABXFC, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
*     *     *     *     *
 69 

 

          This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Indenture.
          IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the day and year first above written.
 	 	 	 	 	 	 	
 	 	ABX FINANCING COMPANY	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	/s/ Karen Cameron	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name: Karen Cameron	 	 	
 	 	 	 	Title: Director	 	 	
 	 	 	 	 	 	 	
 	 	BARRICK GOLD CORPORATION,	 	 	
 	 	as a Guarantor	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	/s/ Sybil Veenman	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name: Sybil Veenman	 	 	
 	 	 	 	Title: Vice President, Assistant General Counsel and Secretary	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	/s/ Andre Falzon	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name: Andre Falzon	 	 	
 	 	 	 	Title: Vice President, Planning and Compliance	 	 	
 	 	 	 	 	 	 	
 	 	BARRICK INTERNATIONAL BANK CORP.,	 	 	
 	 	as a Guarantor	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	/s/ William Birchall	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name: William Birchall	 	 	
 	 	 	 	Title: Director	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	/s/ Paul Hardy	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name: Paul Hardy	 	 	
 	 	 	 	Title: Director	 	 	

 

 	 	 	 	 	 	 	
 	 	BARRICK (HMC) MINING COMPANY	 	 	
 	 	as an additional Guarantor	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	/s/ Sybil Veenman	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name: Sybil Veenman	 	 	
 	 	 	 	Title: Secretary	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	/s/ Andre Falzon	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name: Andre Falzon	 	 	
 	 	 	 	Title: Vice President and Controller	 	 	
 	 	 	 	 	 	 	
 	 	THE BANK OF NEW YORK	 	 	
 	 	as Trustee	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	/s/ Denise S. Moore	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name: DENISE S. MOORE	 	 	
 	 	 	 	Title: ASSISTANT VICE PRESIDENT	 	 	

 

EXHIBIT A
FORM OF SECURITY
[THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 206 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 206(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 210 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF ABX FINANCING COMPANY (“ABXFC”).] †
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO ABXFC OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.] ‡
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) WHICH IS TWO YEARS AFTER

†	 	To be included only on Global Notes deposited with DTC as Depositary.	
 		
‡	 	To be included only on Global Notes deposited with DTC as Depositary.	
 A-1 

 

THE LATER OF THE ISSUE DATE HEREOF AND THE LAST DATE ON WHICH ABX FINANCING COMPANY (“ABXFC”) OR ANY AFFILIATE OF ABXFC WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO ABXFC, THE GUARANTORS OR THE PARENT GUARANTOR, (B) FOR SO LONG AS THE ABXFC NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS BOTH A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A AND A “QUALIFIED PURCHASER” AS DEFINED IN THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED, THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A PERSON THAT IS BOTH A QUALIFIED INSTITUTIONAL BUYER AND A QUALIFIED PURCHASER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (D) TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED PURCHASER AND PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT UPON THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO ABXFC, THE GUARANTORS AND THE PARENT GUARANTOR, SUBJECT IN EACH OF THE FOREGOING CASES, TO A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY BEING COMPLETED AND DELIVERED BY THE TRANSFEROR TO ABXFC, ONE OF THE GUARANTORS OR THE PARENT GUARANTOR. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE, PROVIDED THAT IT WILL BE REPLACED WITH A LEGEND THAT RESTRICTS RESALES WITHIN THE UNITED STATES TO QUALIFIED PURCHASERS. BY PURCHASING THIS NOTE, THE HOLDER AGREES TO TREAT ITS INVESTMENT IN THIS NOTE AND, FOLLOWING THE NOTE EXCHANGE DATE THE BARRICK NOTE RECEIVED IN EXCHANGE THEREFOR, AS INDEBTEDNESS OF BARRICK INTERNATIONAL BANK CORP. AND OF THE JOINT OBLIGORS TO THE EXTENT OF THEIR OBLIGATIONS THEREUNDER) FOR ALL U.S. FEDERAL INCOME TAX PURPOSES.
[THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE CASH PAYMENTS OF INTEREST DURING THE PERIOD WHICH SUCH HOLDER HOLDS THIS NOTE.
 A-2 

 

NOTHING IN THIS LEGEND SHALL BE DEEMED TO PREVENT INTEREST FROM ACCRUING ON THIS NOTE.] §
ABX FINANCING COMPANY
Series [A][B] ___% ABXFC Note due [2016] [2036]
No.                            $                     
CUSIP:
          ABX FINANCING COMPANY, Cayman Islands exempted company having limited liability (the “Issuer”), for value received, hereby promises to pay to [                      ] [Cede & Co.]*, or registered assigns, the principal sum of $                      (                                           DOLLARS) on [date and year], at the office or agency of the Issuer, and to pay interest thereon on [date and year], and semi-annually thereafter on [date] and [date] in each year, commencing on [date and year], or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of ___% per annum, until the Note Exchange Date or otherwise until principal hereof is paid or duly provided for, and (to the extent lawful) to pay on demand interest on any overdue principal, or interest at the rate borne by this ABXFC Note from the date on which such overdue principal, or interest becomes payable to the date payment of such principal or interest has been made or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this ABXFC Note (or one or more predecessor ABXFC Notes) is registered at the close of business on the regular record date for such interest, which shall be the [date] or [date] (each a “Regular Record Date”) (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date, and such defaulted interest, and (to the extent lawful) interest on such defaulted interest at the rate borne by the ABXFC Notes of this Series, may be paid to the Person in whose name this ABXFC Note (or one or more predecessor ABXFC Notes) 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 ABXFC Notes of this Series not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the ABXFC Notes 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. Reference is hereby made to the further provisions of this ABXFC Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
          Unless the certificate of authentication hereon has been duly executed by the Trustee by manual signature, this ABXFC Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.

§	 	To be included only on Reg S Temporary Global Notes.	
 A-3 

 

          IN WITNESS WHEREOF, ABX Financing Company has caused this instrument to be duly executed.
 	 	 	 	 	 	 	
 	 	Dated:	 	 	
 	 	 	 	 	 	 	
 	 	ABX FINANCING COMPANY	 	 	
 	 	 	 	 	 	 	
 	 	By	 	 	 	 	

 	 	By	 	 	 	 	
 	 	 	 	 	 	 	
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
          This is one of the ABXFC Notes of the Series designated therein referred to in the within-mentioned Indenture.
 	 	 	 	 	 	 	
 	 	THE BANK OF NEW YORK,
     as Trustee	 	 	
 	 	 	 	 	 	 	
 	 	By	 	 	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Authorized Officer	 	 	
 A-4 

 

GUARANTEE OF [                ]
          For value received, [           ], a corporation incorporated under the laws of [           ], having its principal executive offices at [           ] (herein called the “Guarantor”, which term includes any successor Person under the Indenture referred to in the ABXFC Note upon which this Guarantee is endorsed), hereby unconditionally and irrevocably guarantees to the Holder of the ABXFC Note 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 and interest on and other amounts that may become payable with respect to such ABXFC Note, 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[; provided , however , that the Guarantor shall be liable for the amount due under this Guarantee multiplied by the Joint Obligor Fraction in respect of such Guarantor]. In case of the failure of ABXFC (as defined in such Indenture), punctually to make any such payment of principal, interest or any other amounts that may become payable with respect to such ABXFC Note, the Guarantor hereby agrees[, to the extent of its liability under this Guarantee,] 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 ABXFC.
          The Guarantor hereby agrees that this Guarantee is a guarantee of payment and not of collection and 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 ABXFC Note or such Indenture, any failure to enforce the provisions of such ABXFC Note or such Indenture, or any waiver, modification or indulgence granted to ABXFC with respect thereto, by the Holder of such ABXFC Note or by the Trustee or by any other circumstance or defense (including fraud in the inducement or other fraud) 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 ABXFC Note, or increase the interest rate thereon 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 ABXFC, any right to require a proceeding first against ABXFC, protest or notice with respect to such ABXFC Note or the indebtedness evidenced thereby or with respect to any other amounts that may be payable with respect to such ABXFC Note 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 and interest on such ABXFC Note.
          The Guarantor further agrees that, if any payment made by ABXFC under the ABXFC Notes is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, under any applicable bankruptcy law, equitable cause or any other requirement of applicable law, then, to the extent of such amount required to be refunded, repaid or returned, the Guarantor’s liability hereunder shall be and remain in full force and effect, as fully as if such payment or proceeds had never been made or received. If, prior to any of the foregoing, this Guarantee shall have been cancelled or
 A-5 

 

surrendered, this Guarantee shall be reinstated in full force and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of the Guarantor in respect of the amount of such payment.
          The Guarantor shall be subrogated to all rights of the Holder of such ABXFC Note and the Trustee against ABXFC in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided , however , that the Guarantor shall not be entitled to enforce or to receive any payments arising out of or based upon such right of subrogation until the principal of and interest on all ABXFC Notes of the same Series issued under such Indenture and any other amounts that may be payable with respect to such ABXFC Notes shall have been paid in full.
          If any of the principal of interest on or other amounts payable in respect of any ABXFC Note is not recoverable from ABXFC for any reason (including any failure of such obligations to be legal, valid and binding obligations of ABXFC enforceable against ABXFC in accordance with their terms) the Guarantors shall indemnify the Holders for such amounts and shall pay those amounts to the Holders on demand made by the Trustee. This applies whether or not the transaction relating to such obligations was void or illegal or has been subsequently avoided. A valid claim made under this indemnity may only be made to the extent a corresponding claim under this Guarantee would have been valid and enforceable, but for the Guarantee being otherwise deemed invalid for any reason.
          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 and interest on the ABXFC Note upon which this Guarantee is endorsed.
          This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication of such ABXFC Note shall have been manually executed by or on behalf of the Trustee under such Indenture.
          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 the date on the face hereof.
 	 	 	 	 	 	 	
 	[                                         ]	 	 	
 	 	 	 	 	 	 	
 	 	By	 	 	 	 	
 	 	 	 	 	
 	 	Name:	 	 	 	 	
 	 	Title:	 	 	 	 	
 A-6 

 

 	 	 	 	 	 	 	
 	 	By	 	 	 	 	
 	 	 	 	 	
 	 	Name:	 	 	 	 	
 	 	Title:	 	 	 	 	
 A-7 

 

[Form of Reverse]
          This security is one of a duly authorized issue of securities of ABX Financing Company (the “the Issuer”) designated as its [5.75% Series A ABXFC Notes due 2016] [6.35% Series B ABXFC Notes due 2036] (herein called the “ABXFC Notes”), limited (except as otherwise provided in the Indenture referred to below) in aggregate principal amount to $[400] [600],000,000], which may be issued under an indenture (herein called the “Indenture”) dated as of October 12, 2006 among the Issuer, Barrick Gold Corporation, Barrick International Bank Corp., Barrick (HMC) Mining Company and The Bank of New York, as trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Guarantors, the Issuer, the Trustee and the Holders of the ABXFC Notes, and of the terms upon which the ABXFC Notes are, and are to be, authenticated and delivered. This ABXFC Note is a Global Note representing $[400] [600],000,000 aggregate principal amount of the ABXFC Notes of this Series.
          On the Note Exchange Date, (i) the Series A ABXFC Notes and the related Guarantees will be mandatorily exchanged for the same principal amount of Series A Barrick Notes and the related guarantee of the obligations of BIBC and the Joint Obligors under the Series A Barrick Notes and (ii) the Series B ABXFC Notes and the related Guarantees will be mandatorily exchanged for the same principal amount of Series B Barrick Notes and the related guarantee of the obligations of BIBC and the Joint Obligors under the Series B Barrick Notes.
          Payment of the principal of and interest on this ABXFC Note will be made at the office or agency of the Issuer maintained for that purpose in the Borough of Manhattan, The City of New York [and, in the case of Holders in Ontario, in Toronto, Ontario, Canada,] in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of interest may be made at the option of the Issuer (i) by check mailed to the address of the Person entitled thereto as such address shall appear on the Security Register or (ii) by wire transfer to an account maintained in the United States by the Person entitled to such payment as specified in the Security Register. Notwithstanding the foregoing, payments of principal and interest on a Global Note registered in the name of a Depositary or its nominee will be made by wire transfer of immediately available funds. Principal paid in relation to any ABXFC Note of this Series at Maturity shall be paid to the Holder of such ABXFC Note only upon presentation and surrender of such ABXFC Note to such office or agency referred to above.
          The ABXFC Notes are subject to redemption as set forth in Article 3 of the Indenture.
          In the case of any redemption of ABXFC Notes of this Series, interest installments whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such ABXFC Notes, or one or more predecessor ABXFC Notes, of record at the close of business on the relevant record dates according to their terms. ABXFC Notes of this Series (or portions thereof) for whose redemption payment is made or duly provided for in accordance with the Indenture shall cease to bear interest from and after the redemption date of the Barrick Notes corresponding to such ABXFC Notes.
          In the event of redemption of this ABXFC Note in part only, a new ABXFC Note or ABXFC Notes of this Series for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.
 A-8 

 

          If an Event of Default shall occur and be continuing, the principal of and accrued but unpaid interest on all the ABXFC Notes may be declared due and payable in the manner and with the effect provided in the Indenture.
          The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer, the Guarantors and the rights of the Holders under the Indenture at any time by the Issuer, the Guarantors and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the ABXFC Notes at the time Outstanding of all Series affected by such amendment or modification. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the ABXFC Notes of this Series at the time Outstanding, on behalf of the Holders of all the ABXFC Notes of this Series, to waive compliance by the Issuer and the Guarantors with certain provisions of the Indenture and also contains provisions permitting the Holders of not less than a majority in aggregate principal amount of the Outstanding ABXFC Notes of all Series with respect to which a Default shall have occurred and shall be continuing, on behalf of the Holders of all Outstanding ABXFC Notes of such affected Series, to waive certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of the Holder of this ABXFC Note shall be conclusive and binding upon such Holder and upon all future Holders of this ABXFC Note and of any ABXFC Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this ABXFC Note.
          No reference herein to the Indenture and no provision of this ABXFC Note or of the Indenture shall alter or impair the obligation of the Issuer and the Guarantors, which is absolute and unconditional, to pay the principal of and interest on this ABXFC Note at the times, place, and rate, and in the coin or currency, herein prescribed.
          As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this ABXFC Note is registerable on the Security Register of the Issuer, upon surrender of this ABXFC Note for registration of transfer at the office or agency of the Issuer maintained for such purpose in the Borough of Manhattan, The City of New York and Toronto, Ontario duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new ABXFC Notes of this Series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
          The ABXFC Notes of this Series are issuable only in registered form without coupons in denominations of $100,000 and any $1,000 integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, the ABXFC Notes of this Series are exchangeable for a like aggregate principal amount of ABXFC Notes of this Series of a different authorized denomination, as requested by the Holder surrendering the same.
          No service charge shall be made for any registration of transfer or exchange of ABXFC Notes of this Series, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
          Prior to the time of due presentment of this ABXFC Note for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose name this
 A-9 

 

ABXFC Note is registered as the owner hereof for all purposes, whether or not this ABXFC Note is overdue, and neither the Issuer, the Trustee nor any agent shall be affected by notice to the contrary.
          Interest on this ABXFC Note shall be computed on the basis of a 360-day year of twelve 30-day months. For the purposes of disclosure under the Interest Act (Canada), the yearly rate of interest which is equivalent to the rate payable hereunder is the rate payable hereunder multiplied by the actual number of days in the year divided by 360.
          Payments of principal (including the Redemption Price, if any) and interest in respect of any Series A ABXFC Note will be funded solely from the corresponding payments under the Series A Barrick Notes, under BGC’s guarantee of the Series A Barrick Notes or under the Guarantees. If such funds are insufficient to make payments due on the Series A ABXFC Notes, no other assets of ABXFC will be available for payment of the deficiency and all obligations of ABXFC and any claims against ABXFC in respect of such amounts under the Series A ABXFC Notes will be extinguished and will not revive.
          Payments of principal (including the Redemption Price, if any) and interest in respect of any Series B ABXFC Note will be funded solely from the corresponding payments under the Series B Barrick Notes, under BGC’s guarantee of the Series B Barrick Notes or under the Guarantees. If such funds are insufficient to make payments due on the Series B ABXFC Notes, no other assets of ABXFC will be available for payment of the deficiency and all obligations of ABXFC and any claims against ABXFC in respect of such amounts under the Series B ABXFC Notes will be extinguished and will not revive.
          Neither payments of the BIBC Settlement Date Payment received by ABXFC from BIBC under the Barrick Notes nor amounts received by ABXFC under the Copper Swap Agreements will be paid to Holders of ABXFC Notes. Holders of ABXFC Notes will not be required to fund any portion of payments to the Counterparties under the Copper Swap Agreements, and no amount which would otherwise be due to Holders of ABXFC Notes will be used to make such payments.
          A director, officer, employee, shareholder or affiliate, as such, of ABXFC, the Administrator, Maples Finance Limited in its capacity as share trustee of the shares in ABXFC or any Guarantor shall not have any liability for any obligations of ABXFC or any Guarantor under the ABXFC Notes, the Guarantees or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting an ABXFC Note, each Holder shall waive and release all such liability. Such waiver and release shall be part of the consideration for the issue of the ABXFC Notes.
          All Global Notes will be exchanged by ABXFC for Definitive Notes if ABXFC delivers to the Trustee notice from the Depositary that the Depositary is unwilling or unable to continue to act as Depositary for the Global Notes and ABXFC thereupon fails to appoint a successor Depositary within 90 days. Upon the occurrence of such event, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee in writing.
          The Indenture and this ABXFC Note shall be governed by and construed in accordance with the laws of the State of New York.
          All references herein to “Dollars” or “$” means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time should be legal tender for the payment of
 A-10 

 

public and private debts, and all terms used in this ABXFC Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
 A-11 

 

ASSIGNMENT FORM*
To assign this ABXFC Note, fill in the form below:
I or we assign and transfer this ABXFC Note to

(INSERT ASSIGNEE’S SOC. SEC., SOC. INS. OR TAX ID NO.)
(Print or type assignee’s name, address and zip or postal code)
and irrevocably appoint                                                                                                                                                                            agent
to transfer this ABXFC Note on the books of the [Guarantor] [Issuer]. The agent may substitute another to act for him.
 	 	 	 	 	
Dated:                     	 	Your Signature:	 	 	
 	 	 	 	 	
 	 	 	 	     (Sign exactly as name appears on the other side of this ABXFC Note)	
 	 	 	 	 	
 	 	Signature Guarantee:	 	 	
 	 	 	 	 	
 	 	 	 	(Signature must be guaranteed by a commercial bank or trust company, by a member or members’ organization of The New York Stock Exchange or by another eligible guarantor institution as defined in Rule 17Ad-15 under the Securities Exchange Act of 1934)	

*	 	Omit if a global security	
 A-12 

 

EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
ABX Financing Company
c/o Maples Finance Limited
P.O. Box 1093GT, Queensgate House
South Church Street, George Town
Grand Cayman, Cayman Islands
The Bank of New York
4 New York Plaza, 15th Floor
New York, New York 10004
     Re: Series [A][B]___% ABXFC Notes due [2016][2036]
Dear Sirs:
          Reference is hereby made to the Indenture, dated as of October 12, 2006 (the “Indenture”), among ABX Financing Company, as issuer (the “Company”), the Guarantors party thereto and The Bank of New York, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.                      , (the “Transferor”) owns and proposes to transfer the ABXFC Note[s] or interest in such ABXFC Note[s] specified in Annex A hereto, in the principal amount of $                      in such ABXFC Note[s] or interests (the “Transfer”), to                      (the “Transferee”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]

1.	 	o Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Definitive Note Pursuant to Rule 144A . The Transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believed and believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is both a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and a “qualified purchaser” as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”), and such Transfer is in compliance with any applicable blue sky securities laws of any State of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Definitive Note and in the Indenture and the Securities Act.	
 B-1 

 

2.	 	o Check if Transferee will take delivery of a beneficial interest in the Regulation S Global Note or a Definitive Note pursuant to Regulation S . The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is of Additional Notes sold by the Company pursuant to Regulation S and is being made prior to the expiration of the Distribution Compliance Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser) and the interest transferred will be held immediately thereafter through Euroclear or Clearstream. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Global Note and/or the Definitive Note and in the Indenture and the Securities Act.	
 		
3.	 	o Check and complete if Transferee will take delivery of a beneficial interest in a Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S . The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any State of the United States, and accordingly the Transferor hereby further certifies that (check one):	

 	(a)	 	o Such Transfer is to a Person that the Transferor reasonably believed and believes is purchasing the Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified purchaser” as defined in the Investment Company Act and being effected pursuant to and in accordance with Rule 144 under the Securities Act; or	
 		
 	(b)	 	o Such Transfer is being effected to the Company or a subsidiary thereof.	

4.	 	o Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.	

 	(a)	 	o Check if Transfer is Pursuant to Rule 144 . (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act to a Person that the Transferor reasonably believed and believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more	
 B-2 

 

 	 	 	accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified purchaser” as defined in the Investment Company Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture and the Securities Act, other than the restriction relating to “qualified purchasers” as defined in the Investment Company Act.	
 		
 	(b)	 	o Check if Transfer is Pursuant to Regulation S . (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture and the Securities Act.	
 		
 	(c)	 	o Check if Transfer is Pursuant to Other Exemption . (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture and the Securities Act, other than the restriction relating to “qualified purchasers” as defined in the Investment Company Act.	
 B-3 

 

This certificate and the statements contained herein are made for your benefit and the benefit of the Company.
 	 	 	 	 	 	 	 	 	
 	 	 	 	Dated:	 	 	 	 	
 	 	 	 	 	 	 	 	 	
[Insert Name of Transferor]
 	 	 	 	 	
By:	 	 	 	 	
 	 	 	 	 	
 	 	Name:
Title:	 	 	
 B-4 

 

ANNEX A TO CERTIFICATE OF TRANSFER
 	 	 	 	 	 	 	 	 	
1.	 	The Transferor owns and proposes to transfer the following:	
 	 	 	 	 	 	 	 	 	
[CHECK ONE OF (a) OR (b)]	
 	 	 	 	 	 	 	 	 	
 	 	(a)	 	o	 	a beneficial interest in the:	
 	 	 	 	 	 	 	 	 	
 	 	 	 	(i)	 	o	 	144A Global Note, or	
 	 	 	 	 	 	 	 	 	
 	 	 	 	(ii)	 	o	 	Regulation S Global Note, or	
 	 	 	 	 	 	 	 	 	
 	 	(b)	 	o	 	a Restricted Definitive Note.	
 	 	 	 	 	 	 	 	 	
2.	 	After the Transfer the Transferee will hold:	
 	 	 	 	 	 	 	 	 	
[CHECK ONE]	
 	 	 	 	 	 	 	 	 	
 	 	(a)	 	o	 	a beneficial interest in the:	
 	 	 	 	 	 	 	 	 	
 	 	 	 	(i)	 	o	 	144A Global Note, or	
 	 	 	 	 	 	 	 	 	
 	 	 	 	(ii)	 	o	 	Regulation S Global Note, or	
 	 	 	 	 	 	 	 	 	
 	 	 	 	(iii)	 	o	 	Unrestricted Global Note; or	
 	 	 	 	 	 	 	 	 	
 	 	(b)	 	o	 	a Restricted Definitive Note; or	
 	 	 	 	 	 	 	 	 	
 	 	(c)	 	o	 	an Unrestricted Definitive Note,	
in accordance with the terms of the Indenture.
 B-5 

 

EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
FOR EXCHANGES PURSUANT TO ARTICLE 2
ABX Financing Company
c/o Maples Finance Limited
P.O. Box 1093GT, Queensgate House
South Church Street, George Town
Grand Cayman, Cayman Islands
The Bank of New York
4 New York Plaza, 15th Floor
New York, New York 10004
     Re: Series [A][B]___% ABXFC Notes due [2016][2036]
Dear Sirs:
          Reference is hereby made to the Indenture, dated as of October 12, 2006 (the “Indenture”), between ABX Financing Company, as issuer (the “Company”), the Guarantors party thereto and The Bank of New York, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
                                , (the “Owner”) owns and proposes to exchange the ABXFC Note[s] or interest in such ABXFC Note[s] specified herein, in the principal amount of $                      in such ABXFC Note[s] or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:
          1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note.
               (a)  o Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note . In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the United States Securities Act of 1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any State of the United States and by a Person who is a “qualified purchaser” as defined in the Investment Company Act.
               (b)  o Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note . In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the
 C-1 

 

Owner hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any State of the United States and by a person who is a “qualified purchaser” as defined in the Investment Company Act.
               (c)  Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note . In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any State of the United States and by a person who is a “qualified purchaser” as defined in the Investment Company Act.
               (d)  Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note . In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any State of the United States and by a person who is a “qualified purchaser” as defined in the Investment Company Act.
          2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes.
               (a)  o Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note . In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.
 C-2 

 

               (b)  o Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note . In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the: [CHECK ONE] o 144A Global Note or ? Regulation S Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any State of the United States and (iii) the Owner is not an affiliate (as defined in Rule 144) of the Company. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.
 C-3 

 

This certificate and the statements contained herein are made for your benefit and the benefit of the Company.

[Insert Name of Owner]	 	 	
 	 	 	 	 	
By:	 	 	 	 	
 	 	 	 	 	
 	 	Name:
Title:	 	 	
 	 	 	 	 	
Dated:	 	 	 	 	
 	 	 	 	 	
 C-4 

 

EXHIBIT D
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
          SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of                      , 200___, among                      (the “New Guarantor”), ABX FINANCING COMPANY, a Cayman Islands exempted company having limited liability (“ABXFC”), BARRICK INTERNATIONAL BANK CORP., a corporation duly organized and existing under the laws of Barbados, in its capacity as guarantor (“BIBC”), BARRICK (HMC) MINING COMPANY, a corporation duly organized and existing under the laws of the state of Delaware, in its capacity as guarantor (“BMC”), BARRICK GOLD CORPORATION, in its capacity as guarantor (“BGC” and, together with BIBC and BMC, the “Existing Guarantors”), and The Bank of New York, as trustee (the “Trustee”).
W I T N E S S E T H
          WHEREAS, ABXFC and the Existing Guarantors have heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified, the “Indenture”), dated as of October 12, 2006 providing for the issuance of $400,000,000 aggregate principal amount of 5.75% Series A ABXFC Notes due 2016 (the “Series A ABXFC Notes”) and $600,000,000 aggregate principal amount of 6.35% Series B ABXFC Notes due 2036 (the “Series B ABXFC Notes,” and together with the Series A ABXFC Notes, the “Securities”);
          WHEREAS, Section 1201 of the Indenture provides that under certain circumstances the New Guarantor shall execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantor shall be liable as a Guarantor of the Securities solely for any amount due under the Guarantees multiplied by the Joint Obligor Fraction in respect of such New Guarantor in its capacity as Joint Obligor under the Barrick Indenture; and
          WHEREAS, pursuant to Section 1201 of the Indenture, the Trustee, ABXFC, BIBC, BMC and the BGC are authorized to execute and deliver this Supplemental Indenture.
          NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Guarantor, ABXFC, BIBC, BMC, BGC and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
          1. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
          2. AGREEMENT TO ACT AS A GUARANTOR. The New Guarantor hereby agrees to be liable on the Securities solely for any amount due under the Guarantees multiplied by the Joint Obligor Fraction in respect of such New Guarantor in its capacity as Joint Obligor under the Barrick Indenture and to be bound by all other applicable provisions of the Indenture and the ABXFC Notes and to perform all of the obligations and agreements of a Joint Obligor under the Indenture.
 D-1 

 

          3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of ABXFC, BIBC, BMC, BGC or any other Guarantor, will have any liability for any obligations of ABXFC, BIBC, BMC, BGC or any other Guarantor under the Securities, the Indenture, the Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting the Securities waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Securities. The waiver may not be effective to waive liabilities under the federal securities laws.
          4. NOTICES. All notices or other communications to the New Guarantor shall be given as provided in Section 105 of the Indenture.
          5. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES PART OF INDENTURE. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder heretofore or hereafter authenticated and delivered shall be bound hereby.
          6. GOVERNING LAW. THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
          7. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
          8. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
          9. TRUSTEE MAKES NO REPRESENTATION. The recitals contained herein shall be taken as the statements of ABXFC and Guarantors, and the Trustee shall not assume any responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.
 D-2 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
Dated:                      , 20___
 	 	 	 	 	 	 	
 	 	[NEW GUARANTOR]	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name:
Title:	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name:
Title:	 	 	
 	 	 	 	 	 	 	
 	 	ABX FINANCING COMPANY,
as Issuer	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name:
Title:	 	 	
 	 	 	 	 	 	 	
 	 	BARRICK GOLD CORPORATION,
as Guarantor	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name:
Title:	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name:	 	 	
 	 	 	 	Title:	 	 	
 D-3 

 

 	 	 	 	 	 	 	
 	 	BARRICK INTERNATIONAL BANK CORP.,
as Guarantor	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name:
Title:	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name:
Title:	 	 	
 	 	 	 	 	 	 	
 	 	BARRICK (HMC) MINING COMPANY
as Guarantor	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name:
Title:	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name:
Title:	 	 	
 	 	 	 	 	 	 	
 	 	THE BANK OF NEW YORK
as Trustee	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Authorized Signatory	 	 	
 D-4 

Exhibit 99.2
BARRICK INTERNATIONAL BANK CORP.
as Issuer
BARRICK (HMC) MINING COMPANY
As the initial Joint Obligor
BARRICK GOLD CORPORATION
as Parent Guarantor
AND
THE BANK OF NEW YORK
as Trustee
 
Indenture
Dated as of October 12, 2006

 

TABLE OF CONTENTS *
 	 	 	 	 	
 	 	Page	 	
PARTIES	 	 	1	 	
RECITALS	 	 	1	 	
 	 	 	 	 	
ARTICLE ONE	
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION	
 	 	 	 	 	
SECTION 101. Definitions	 	 	1	 	
“ABXFC”	 	 	2	 	
“ABXFC Notes”	 	 	2	 	
“ABXFC Settlement Date Payment Amount”	 	 	2	 	
“Act”	 	 	2	 	
“Additional Amounts”	 	 	2	 	
“Affiliate”	 	 	2	 	
“Agent Members”	 	 	2	 	
“Authenticating Agent”	 	 	2	 	
“Authorized Newspaper”	 	 	2	 	
“Bankruptcy Law”	 	 	2	 	
“Bankruptcy Order”	 	 	2	 	
“BIBC Settlement Date Payment Amount”	 	 	2	 	
“Board of Directors”	 	 	3	 	
“Board Resolution”	 	 	3	 	
“Business Day”	 	 	3	 	
“Certificated Notes”	 	 	3	 	
“Commission”	 	 	3	 	
“Consolidated Net Tangible Assets”	 	 	3	 	
“Copper Swap Agreements”	 	 	4	 	
“Corporate Trust Office”	 	 	4	 	
“corporation”	 	 	4	 	
“covenant defeasance”	 	 	4	 	
“Counterparties”	 	 	4	 	
“Currency”	 	 	4	 	
“Custodian”	 	 	4	 	
“Default”	 	 	4	 	
“Defaulted Interest”	 	 	4	 	
“defeasance”	 	 	4	 	
“Depositary”	 	 	4	 	
“Dollar” or “$”	 	 	4	 	
“Event of Default”	 	 	4	 	
“Excluded Holder”	 	 	4	 	

Note:	 	This table of contents shall not, for any purpose, be deemed to be a part of the Indenture.	
 i  

 

 	 	 	 	 	
 	 	Page	 	
“Federal Bankruptcy Code”	 	 	4	 	
“Financial Instrument Obligations”	 	 	4	 	
“Fixed Price”	 	 	5	 	
“Floating Price”	 	 	5	 	
“Funded Debt”	 	 	5	 	
“Global Notes”	 	 	5	 	
“Governmental Authority”	 	 	5	 	
“Government Obligations”	 	 	5	 	
“Guarantee”	 	 	6	 	
“Holder”	 	 	6	 	
“Indebtedness”	 	 	6	 	
“Indenture”	 	 	6	 	
“Interest Payment Date”	 	 	6	 	
“Issuer”	 	 	6	 	
“Issuer Request” or “Issuer Order”	 	 	6	 	
“Joint Obligor”	 	 	6	 	
“Judgment Currency”	 	 	6	 	
“Lien”	 	 	6	 	
“Make-Whole Amount”	 	 	6	 	
“Maturity”	 	 	6	 	
“Non-Recourse Debt”	 	 	6	 	
“North American Subsidiary”	 	 	7	 	
“Note Exchange Date”	 	 	7	 	
“Obligation Transfer Amount”	 	 	7	 	
“Officers’ Certificate”	 	 	7	 	
“Opinion of Counsel”	 	 	7	 	
“Outstanding”	 	 	7	 	
“Parent Guarantor”	 	 	8	 	
“Permitted Liens”	 	 	8	 	
“Person”	 	 	10	 	
“Place of Payment”	 	 	10	 	
“Principal Asset”	 	 	10	 	
“Purchase Money Mortgage”	 	 	10	 	
“rate(s) of exchange”	 	 	10	 	
“Redemption Date”	 	 	10	 	
“Redemption Price”	 	 	10	 	
“Regular Record Date”	 	 	10	 	
“Required Currency”	 	 	10	 	
“Responsible Officer”	 	 	10	 	
“Restricted Subsidiary”	 	 	11	 	
“Revolving Period”	 	 	11	 	
“Securities”	 	 	11	 	
“Security Register”	 	 	11	 	
“Security Registrar”	 	 	11	 	
“Series”	 	 	11	 	
“Settlement Dates”	 	 	11	 	
 ii  

 

 	 	 	 	 	
 	 	Page	 	
“Settlement Date Quantity”	 	 	11	 	
“Special Record Date”	 	 	11	 	
“Stated Maturity”	 	 	12	 	
“Subsidiary”	 	 	12	 	
“Tax Event”	 	 	12	 	
“Trustee”	 	 	12	 	
“United States”	 	 	12	 	
“U.S. GAAP”	 	 	12	 	
“Vice President”	 	 	12	 	
“Voting Stock”	 	 	12	 	
SECTION 102. Compliance Certificates and Opinions	 	 	12	 	
SECTION 103. Form of Documents Delivered to Trustee	 	 	13	 	
SECTION 104. Acts of Holders	 	 	14	 	
SECTION 105. Notices, etc. to Trustee, Parent Guarantor, and Issuer	 	 	15	 	
SECTION 106. Notice to Holders; Waiver	 	 	15	 	
SECTION 107. Effect of Headings and Table of Contents	 	 	16	 	
SECTION 108. Successors and Assigns	 	 	16	 	
SECTION 109. Separability Clause	 	 	16	 	
SECTION 110. Benefits of Indenture	 	 	16	 	
SECTION 111. Governing Law	 	 	16	 	
SECTION 112. Legal Holidays	 	 	16	 	
SECTION 113. Agent for Service; Submission to Jurisdiction; Waiver of Immunities	 	 	17	 	
SECTION 114. Conversion Currency	 	 	17	 	
SECTION 115. No Recourse Against Others	 	 	19	 	
SECTION 116. Multiple Originals	 	 	19	 	
 	 	 	 	 	
ARTICLE TWO	
SECURITY FORMS	
 	 	 	 	 	
SECTION 201. Form and Dating	 	 	19	 	
SECTION 202. Form of Trustee’s Certificate of Authentication	 	 	19	 	
SECTION 203. Securities Issuable in Global Form	 	 	20	 	
SECTION 204. Restrictive Legends	 	 	21	 	
SECTION 205. Execution, Authentication, Delivery and Dating	 	 	23	 	
SECTION 206. Transfer and Exchange	 	 	24	 	
SECTION 207. Mutilated, Destroyed, Lost and Stolen Securities	 	 	27	 	
SECTION 208. Payment of Principal and Interest; Interest Rights Preserved	 	 	27	 	
SECTION 209. Outstanding Securities	 	 	29	 	
SECTION 210. Cancellation	 	 	29	 	
SECTION 211. Computation of Interest	 	 	30	 	
SECTION 212. CUSIP Numbers	 	 	30	 	
SECTION 213. Persons Deemed Owners	 	 	30	 	
 	 	 	 	 	
ARTICLE THREE	
OPTIONAL REDEMPTION	
 	 	 	 	 	
SECTION 301. Right to Redeem; Notices to Trustee	 	 	31	 	
SECTION 302. Selection by Trustee of Securities to be Redeemed	 	 	32	 	
 iii  

 

 	 	 	 	 	
 	 	Page	 	
SECTION 303. Notice of Redemption	 	 	33	 	
SECTION 304. Deposit of Redemption Price	 	 	34	 	
SECTION 305. Securities Payable on Redemption Date	 	 	34	 	
SECTION 306. Tax Redemption	 	 	34	 	
 	 	 	 	 	
ARTICLE FOUR	
SATISFACTION AND DISCHARGE	
 	 	 	 	 	
SECTION 401. Satisfaction and Discharge of Indenture	 	 	35	 	
SECTION 402. Application of Trust Money	 	 	36	 	
 	 	 	 	 	
ARTICLE FIVE	
REMEDIES	
 	 	 	 	 	
SECTION 501. Events of Default	 	 	37	 	
SECTION 502. Acceleration of Maturity; Rescission and Annulment	 	 	39	 	
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee	 	 	40	 	
SECTION 504. Trustee May File Proofs of Claim	 	 	41	 	
SECTION 505. Trustee May Enforce Claims Without Possession of Securities	 	 	41	 	
SECTION 506. Application of Money Collected	 	 	42	 	
SECTION 507. Limitation on Suits	 	 	42	 	
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest	 	 	43	 	
SECTION 509. Restoration of Rights and Remedies	 	 	43	 	
SECTION 510. Rights and Remedies Cumulative	 	 	43	 	
SECTION 511. Delay or Omission Not Waiver	 	 	43	 	
SECTION 512. Control by Holders	 	 	43	 	
SECTION 513. Waiver of Past Defaults	 	 	44	 	
SECTION 514. Waiver of Stay or Extension Laws	 	 	44	 	
SECTION 515. Undertaking for Costs	 	 	45	 	
SECTION 516. Effect of Event of Default	 	 	45	 	
 	 	 	 	 	
ARTICLE SIX	
THE TRUSTEE	
 	 	 	 	 	
SECTION 601. Notice of Defaults	 	 	45	 	
SECTION 602. Certain Rights of Trustee	 	 	46	 	
SECTION 603. Trustee Not Responsible for Recitals or Issuance of Securities	 	 	47	 	
SECTION 604. May Hold Securities	 	 	47	 	
SECTION 605. Money Held in Trust	 	 	47	 	
SECTION 606. Compensation and Reimbursement	 	 	47	 	
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests	 	 	48	 	
SECTION 608. Resignation and Removal; Appointment of Successor	 	 	48	 	
SECTION 609. Acceptance of Appointment by Successor	 	 	49	 	
SECTION 610. Merger, Conversion, Consolidation or Succession to Business	 	 	51	 	
SECTION 611. Appointment of Authenticating Agent	 	 	51	 	
 iv  

 

 	 	 	 	 	
 	 	Page	 	
ARTICLE SEVEN	
HOLDERS’ LISTS AND REPORTS BY TRUSTEE, ISSUERS AND PARENT GUARANTOR	
 	 	 	 	 	
SECTION 701. Disclosure of Names and Addresses of Holders	 	 	53	 	
SECTION 702. Reports by the Parent Guarantor	 	 	53	 	
SECTION 703. The Parent Guarantor to Furnish Trustee Names and Addresses of Holders	 	 	54	 	
 	 	 	 	 	
ARTICLE EIGHT	
CONSOLIDATION, AMALGAMATION, MERGER, CONVEYANCE,	
TRANSFER OR LEASE	
 	 	 	 	 	
SECTION 801. Issuer and Parent Guarantor May Amalgamate or Consolidate, etc., Only on Certain Terms	 	 	54	 	
SECTION 802. Successor Person Substituted	 	 	55	 	
SECTION 803. Securities to Be Secured in Certain Events	 	 	56	 	
 	 	 	 	 	
ARTICLE NINE	
SUPPLEMENTAL INDENTURES	
 	 	 	 	 	
SECTION 901. Supplemental Indentures Without Consent of Holders	 	 	56	 	
SECTION 902. Supplemental Indentures with Consent of Holders	 	 	57	 	
SECTION 903. Execution of Supplemental Indentures	 	 	58	 	
SECTION 904. Effect of Supplemental Indentures	 	 	59	 	
SECTION 905. Reference in Securities to Supplemental Indentures	 	 	59	 	
SECTION 906. Notice of Supplemental Indentures	 	 	59	 	
 	 	 	 	 	
ARTICLE TEN	
COVENANTS	
 	 	 	 	 	
SECTION 1001. Payment of Principal, Premium, if any, and Interest	 	 	59	 	
SECTION 1002. Maintenance of Office or Agency	 	 	59	 	
SECTION 1003. Money for Securities Payments to Be Held in Trust	 	 	60	 	
SECTION 1004. Statement as to Compliance	 	 	61	 	
SECTION 1005. Additional Amounts	 	 	62	 	
SECTION 1006. Payment of Taxes and Other Claims	 	 	64	 	
SECTION 1007. Maintenance of Properties	 	 	64	 	
SECTION 1008. Corporate Existence	 	 	64	 	
SECTION 1009. Limitation on Liens	 	 	64	 	
SECTION 1010. Waiver of Certain Covenants	 	 	65	 	
 	 	 	 	 	
ARTICLE ELEVEN	
OBLIGATION TRANSFER AMOUNTS	
 	 	 	 	 	
SECTION 1101. Obligation Transfer Amounts	 	 	66	 	
SECTION 1102. ABXFC Payment Obligation	 	 	66	 	
SECTION 1103. BIBC’s Obligation to Notify ABXFC	 	 	67	 	
 	 	 	 	 	
ARTICLE TWELVE	
JOINT OBLIGORS	
 	 	 	 	 	
SECTION 1201. Designation of Joint Obligors	 	 	67	 	
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 	 	 	Page	
ARTICLE THIRTEEN	
[INTENTIONALLY OMITTED]	
 	 	 	 	 	
ARTICLE FOURTEEN	
DEFEASANCE AND COVENANT DEFEASANCE	
 	 	 	 	 	
SECTION 1401. Option to Effect Defeasance or Covenant Defeasance	 	 	68	
SECTION 1402. Defeasance and Discharge	 	 	68	
SECTION 1403. Covenant Defeasance	 	 	68	
SECTION 1404. Conditions to Defeasance or Covenant Defeasance	 	 	69	
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions	 	 	71	
SECTION 1406. Reinstatement	 	 	71	
 	 	 	 	 	
ARTICLE FIFTEEN	
GUARANTEE OF GUARANTEED SECURITIES	
 	 	 	 	 	
SECTION 1501. Guarantee	 	 	72	
SECTION 1502. Execution and Delivery of Guarantees	 	 	73	
SECTION 1503. Form of Guarantee	 	 	74	
SECTION 1504. Notice to Trustee	 	 	76	
SECTION 1505. This Article Not to Prevent Events of Default	 	 	76	
 	 	 	 	 	
ARTICLE SIXTEEN	
MEETINGS OF HOLDERS OF SECURITIES	
 	 	 	 	 	
SECTION 1601. Purposes for Which Meetings May Be Called	 	 	76	
SECTION 1602. Call, Notice and Place of Meetings	 	 	76	
SECTION 1603. Persons Entitled to Vote at Meetings	 	 	77	
SECTION 1604. Quorum; Action	 	 	77	
SECTION 1605. Determination of Voting Rights; Conduct and Adjournment of Meetings	 	 	78	
SECTION 1606. Counting Votes and Recording Action of Meetings	 	 	79	
 	 	 	 	 	
FORM OF SECURITY	 	EXHIBIT A	
 	 	 	 	 	
FORM OF SUPPLEMENTAL INDENTURE	 	EXHIBIT B	
 	 	 	 	 	
COPPER SWAP AGREEMENTS	 	APPENDIX A	
 	 	 	 	 	
SETTLEMENT DATE QUANTITIES	 	APPENDIX B	
 vi  

 

          INDENTURE, dated as of October 12, 2006, among BARRICK INTERNATIONAL BANK CORP., a corporation duly organized and existing under the laws of Barbados (the “BIBC”), BARRICK (HMC) MINING COMPANY, a corporation duly organized and existing under the laws of the state of Delaware (“BMC”), BARRICK GOLD CORPORATION, in its capacity as parent guarantor (the “Parent Guarantor”) and The Bank of New York, as trustee (the “Trustee”).
RECITALS
          BIBC has duly authorized the execution and delivery of this Indenture to provide for the issuance of $400,000,000 aggregate principal amount of 5.75% Series A Barrick Copper Notes due 2016 (the “Series A Barrick Notes”) and $600,000,000 aggregate principal amount of 6.35% Series B Barrick Copper Notes due 2036 (the “Series B Barrick Notes,” and together with the Series A Barrick Notes, the “Securities”).
          BMC has duly authorized the execution and delivery of this Indenture.
          The Parent Guarantor has 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 BIBC, BMC and the Parent Guarantor, in accordance with its terms, has been done.
          NOW, THEREFORE, THIS INDENTURE WITNESSETH:
          For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities, 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 accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles used in the Parent Guarantor’s annual financial statements contained in the Parent Guarantor’s annual report delivered to its shareholders in respect of the fiscal year immediately prior to the date of such computation; and
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     (3) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
          Certain terms, used principally in Article Three, are defined in that Article.
          “ABXFC” means ABX Financing Company, a Cayman Islands exempted company incorporated with limited liability.
          “ABXFC Notes“means $400,000,000 aggregate principal amount of 5.75% Series A ABXFC Notes due 2016 and $600,000,000 aggregate principal amount of 6.35% Series B ABXFC Notes due 2036.
          “ABXFC Settlement Date Payment Amount” has the meaning specified in Section 1102.
          “Act”, when used with respect to any Holder, has the meaning specified in Section 104.
          “Additional Amounts” has the meaning specified in Section 1005.
          “Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
          “Agent Members” has the meaning specified in Section 203.
          “Authenticating Agent” means any Person appointed by the Trustee to act on behalf of the Trustee pursuant to Section 611 to authenticate Securities.
          “Authorized Newspaper” means a newspaper, in the English language or in an official language of the country of publication, customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in each place in connection with which the term is used or in the financial community of each such place. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any Business Day.
          “Bankruptcy Law” has the meaning specified in Section 501.
          “Bankruptcy Order” has the meaning specified in Section 501.
          “BIBC Settlement Date Payment Amount” has the meaning specified in Section 1101.
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          “Board of Directors” means the board of directors of the Issuer or the Parent Guarantor, as the case may be, or any duly authorized committee of such board.
          “Board Resolution” means a copy of a resolution certified, in the case of the Parent Guarantor, by the Secretary or an Assistant Secretary of the Parent Guarantor, and in the case of the Issuer, by any two directors or two Persons authorized by such Issuer, 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 or any other particular location referred to in this Indenture or in the Securities, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment or other location are authorized or obligated by law or executive order to close.
          “Certificated Notes” has the meaning specified in Section 201.
          “Commission” means the U.S. Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
          “Consolidated Net Tangible Assets” means, at a particular date, the aggregate amount of assets (less applicable reserves and other properly deductible items) shown on the most recent consolidated financial statements of the Parent Guarantor filed with or furnished to the Commission by the Parent Guarantor (or, in the event that the Parent Guarantor is not required by law or pursuant to this Indenture to file reports with the Commission, as set forth on the most recent consolidated financial statements provided to the Trustee) less (i) all current liabilities (excluding any portion constituting Funded Debt); (ii) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangibles (excluding from intangibles, for greater certainty, mineral rights, interests in mineral properties, deferred mining, acquisition, exploration and stripping costs and deferred charges relating to hedging agreements); and (iii) appropriate adjustments on account of minority interests of other Persons holding shares of any of the Subsidiaries, all as set forth on the most recent balance sheet of the Parent Guarantor and its consolidated Subsidiaries filed with or furnished to the Commission by the Parent Guarantor (or, in the event that the Parent Guarantor is not required by law or pursuant to this Indenture to file reports with the Commission, as set forth on the most recent balance sheet provided to the Trustee) (but, in any event, as of a date within 150 days of the date of determination) and computed in accordance with the accounting principles used in the Parent Guarantor’s annual financial statements contained in the Parent Guarantor’s annual report delivered to its shareholders in respect of the fiscal year immediately prior to the date of such computation which, on the date of this Indenture, is U.S. GAAP; provided that in no event shall any amount be deducted in respect of unrealized mark-to-market adjustments (whether positive or negative and whether or not reflected in the Parent Guarantor’s consolidated financial statements) relating to hedging and other financial risk management activities of the Parent Guarantor or any of its Subsidiaries (including, without limitation, commodity, interest rate and foreign exchange trading and sales agreements).
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          “Copper Swap Agreements” means the unsecured cash settled copper swap agreements among ABXFC and each of the Counterparties in relation to the Series A Barrick Notes and the unsecured cash settled copper swap agreements among ABXFC and each of the Counterparties in relation to the Series B Barrick Notes. Such copper swap agreements are attached hereto as Appendix A.
          “Corporate Trust Office” means the principal corporate trust office of the Trustee in the Borough of Manhattan, The City of New York, at which at any particular time its corporate trust business may be administered, which office on the date of execution of this Indenture is located at 4 New York Plaza, 15 th Floor, New York, New York 10004 or, in the case of Holders in Ontario, Suite 1800, South Tower, Royal Bank Plaza, 200 Bay Street, Toronto, Ontario M5J 2J2.
          “corporation” includes corporations, associations, companies and business trusts, except that the term “corporation”, as used in the definition of “Subsidiary”, shall only include corporations.
          “covenant defeasance” has the meaning specified in Section 1403.
          “Counterparties” means UBS AG, London Branch and Morgan Stanley Capital Group Inc.
          “Currency” means any currency or currencies, composite currency or currency unit or currency units, including, without limitation, the Euro, issued by the government of one or more countries or by any recognized confederation or association of such governments.
          “Custodian” has the meaning specified in Section 501.
          “Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.
          “Defaulted Interest” has the meaning specified in Section 208.
          “defeasance” has the meaning specified in Section 1402.
          “Depositary” means The Depository Trust Company, or any successor thereto.
          “Dollar” or “$” means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private debts.
          “Event of Default” has the meaning specified in Section 501.
          “Excluded Holder” has the meaning specified in Section 1005.
          “Federal Bankruptcy Code” means the Bankruptcy Act of Title 11 of the United States Code, as amended from time to time.
          “Financial Instrument Obligations” means obligations arising under:
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     (i) interest rate swap agreements, forward rate agreements, floor, cap or collar agreements, futures or options, insurance or other similar agreements or arrangements, or any combination thereof, entered into by a Person relating to interest rates or pursuant to which the price, value or amount payable thereunder is dependent or based upon interest rates in effect from time to time or fluctuations in interest rates occurring from time to time;
     (ii) currency swap agreements, cross-currency agreements, forward agreements, floor, cap or collar agreements, futures or options, insurance or other similar agreements or arrangements, or any combination thereof, entered into by a Person relating to currency exchange rates or pursuant to which the price, value or amount payable thereunder is dependent or based upon currency exchange rates in effect from time to time or fluctuations in currency exchange rates occurring from time to time; and
     (iii) commodity swap, hedging or sales agreements, floor, cap or collar agreements, commodity futures or options or other similar agreements or arrangements, or any combination thereof, entered into by a Person relating to one or more commodities or pursuant to which the price, value or amount payable thereunder is dependent or based upon the price of one or more commodities in effect from time to time or fluctuations in the price of one or more commodities occurring from time to time.
          “Fixed Price” has the meaning specified in Section 1101.
          “Floating Price” has the meaning specified in Section 1103.
          “Funded Debt” as applied to any Person, means all indebtedness of such Person maturing after, or renewable or extendable at the option of such Person beyond, twelve months from the date of determination.
          “Global Notes” has the meaning specified in Section 203.
          “Governmental Authority” means any nation or government, any state, province, territory or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
          “Government Obligations” means securities which are (a) direct obligations of the government which issued the Currency in which the Securities are payable or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the government which issued the Currency in which the Securities are payable, the payment of which is unconditionally guaranteed by such government, which, in either case, are full faith and credit obligations of such government payable in such Currency and are not callable or redeemable at the option of the issuer thereof and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government Obligation held by such custodian for the account of a holder of a depositary receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government
 5 

 

Obligation or the specific payment of interest or principal of the Government Obligation evidenced by such depository receipt.
          “Guarantee” means any guarantee of the Parent Guarantor as endorsed on a Security authenticated and delivered pursuant to this Indenture and shall include the Guarantee set forth in Section 1501 of this Indenture and all other obligations and covenants of the Parent Guarantor contained in this Indenture and any of the Securities.
          “Holder” means the Person in whose name a Security is registered in the Security Register.
          “Indebtedness” means obligations for money borrowed whether or not evidenced by notes, bonds, debentures or other similar evidences of indebtedness.
          “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.
          “Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
          “Issuer” means, initially, BIBC. The term “Issuer” shall also include any Joint Obligor to which any Obligation Transfer Amount shall have been advanced by ABXFC pursuant to Section 1101 and Section 1102. References to the “Issuer” in this Indenture shall include BIBC and/or any such Joint Obligor, as applicable, and where the context requires, “Issuer” shall mean BIBC and all Joint Obligors collectively.
          “Issuer Request” or “Issuer Order” means a written request or order signed in the name of the Issuer by any two directors or officers of the Issuer, and delivered to the Trustee.
          “Joint Obligor” means BMC and any additional joint obligor designated by BIBC pursuant to Section 1201, or any successor to any of them, and where the context requires, “Joint Obligor” shall mean all Joint Obligors collectively.
          “Judgment Currency” has the meaning specified in Section 114.
          “Lien” means any mortgage, lien, pledge, charge, security interest or encumbrance of any kind created, incurred or assumed in order to secure payment of Indebtedness.
          “Make-Whole Amount” has the meaning specified in Section 301.
          “Maturity”, when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption, notice of option to elect repayment or otherwise.
          “Non-Recourse Debt” means Indebtedness to finance the creation, development, construction or acquisition of properties or assets and any increases in or extensions, renewals or
 6 

 

refinancings of such Indebtedness, provided that the recourse of the lender thereof (including any agent, trustee, receiver or other Person acting on behalf of such entity) in respect of such Indebtedness is limited in all circumstances to the properties or assets created, developed, constructed or acquired in respect of which such Indebtedness has been incurred, to the capital stock and debt securities of the Restricted Subsidiary that acquires or owns such properties or assets and to the receivables, inventory, equipment, chattels, contracts, intangibles and other assets, rights or collateral connected with the properties or assets created, developed, constructed or acquired and to which such lender has recourse.
          “North American Subsidiary” means any Subsidiary that maintains a substantial portion of its fixed assets within Canada or the United States.
          “Note Exchange Date” means the third Business Day following the last day of the Revolving Period.
          “Obligation Transfer Amount” has the meaning specified in Section 1101.
          “Officers’ Certificate” means a certificate signed, with respect to the Parent Guarantor, by the Chairman, the Chief Executive Officer, the President or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Parent Guarantor, and, with respect to the Issuer, any two directors or officers of such Issuer, and delivered to the Trustee.
          “Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Issuer or the Parent Guarantor, including an employee of the Issuer or the Parent Guarantor, and who shall be acceptable to 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 :
     (i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
     (ii) Securities, or portions thereof, for whose payment or redemption or repayment at the option of the Holder money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Issuer or the Parent Guarantor) in trust or set aside and segregated in trust by the Issuer or the Parent Guarantor (if the Issuer or the Parent Guarantor 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;
     (iii) Securities, except to the extent provided in Sections 1402 and 1403, with respect to which the Issuer has effected defeasance and/or covenant defeasance as provided in Article Fourteen; and
     (iv) Securities 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
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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 Issuer;
provided , however , that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, the Securities owned by the Issuer, the Parent Guarantor or any other obligor upon the Securities or any Affiliate of the Issuer, the Parent Guarantor or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee certifies to the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Issuer, the Parent Guarantor or any other obligor upon the Securities or any Affiliate of the Issuer, the Parent Guarantor or such other obligor.
          “Parent Guarantor” means the Person named as “Parent Guarantor” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Parent Guarantor” shall mean such successor Person.
          “Paying Agent” means any Person (including the Issuer acting as Paying Agent) authorized by the Issuer to pay the principal of (or Make-Whole Amount, if any) or interest, if any, on any Securities on behalf of the Issuer.
          “Permitted Liens” means:
     (i) Liens existing on the date of this Indenture, or arising thereafter pursuant to contractual commitments entered into prior to the date of this Indenture;
     (ii) Liens securing the Securities;
     (iii) Liens incidental to the conduct of the business of the Parent Guarantor or any Restricted Subsidiary or the ownership of their assets that, in the aggregate, do not materially impair the operation of the business of the Parent Guarantor and its Subsidiaries taken as a whole, including, without limitation, any such Liens created pursuant to joint development agreements and leases, subleases, royalties or other similar rights granted to or reserved by others;
     (iv) Purchase Money Mortgages;
     (v) Any Lien on any Principal Asset existing at the time the Parent Guarantor or any Restricted Subsidiary acquires the Principal Asset (or any business entity then owning the Principal Asset) whether or not assumed by the Parent Guarantor or such Restricted Subsidiary and whether or not such Lien was given to secure the payment of the purchase price of the Principal Asset (or any entity then owning the Principal Asset), provided that no such Lien shall extend to any other Principal Asset;
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     (vi) any Lien to secure Indebtedness owing to the Parent Guarantor or to another Subsidiary;
     (vii) Liens on the assets of a corporation existing at the time the corporation is liquidated or merged into, or amalgamated or consolidated with, the Parent Guarantor or any Restricted Subsidiary or at the time of the sale, lease or other disposition to the Parent Guarantor or any Restricted Subsidiary of the properties of such corporation as, or substantially as, an entirety;
     (viii) any attachment or judgment Lien provided that (a) the execution or enforcement of the judgment it secures is effectively stayed and the judgment is being contested in good faith, (b) the judgment it secures is discharged within 60 days after the later of the entering of such judgment and the expiration of any applicable stay or (c) the payment of the judgment secured is covered in full (subject to a customary deductible) by insurance;
     (ix) any Lien in connection with Indebtedness which by its terms is Non-Recourse Debt;
     (x) any Lien for taxes, assessments or governmental charges or levies (a) that are not yet due and delinquent or (b) the validity of which is being contested in good faith;
     (xi) any Lien of materialmen, mechanics, carriers, workmen, repairmen, landlords or other similar Liens, or deposits to obtain the release of these Liens;
     (xii) any Lien (a) to secure public or statutory obligations (including reclamation and closure bonds and similar obligations), (b) to secure payment of workmen’s compensation, employment insurance or other forms of governmental insurance or benefits, (c) to secure performance in connection with tenders, leases of real property, environmental, land use or other governmental or regulatory permits, bids or contracts or (d) to secure (or in lieu of) surety or appeal bonds, and Liens made in the ordinary course of business for similar purposes;
     (xiii) any Lien granted in the ordinary course of business in connection with Financial Instrument Obligations;
     (xiv) any Lien created for the sole purpose of renewing or refunding any of the Liens described in clauses (i) through (xiii) above, provided that the Indebtedness secured thereby shall not exceed the principal amount of Indebtedness so secured at the time of such renewal or refunding, and that such renewal or refunding Lien shall be limited to all or any part of the same property which secured the Lien renewed or refunded; and
     (xv) any Lien not otherwise permitted under clauses (i) through (xiv) above, provided that the aggregate principal amount of Indebtedness secured by all such Liens would not then exceed 10% of Consolidated Net Tangible Assets.
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          “Person” means an individual, partnership, corporation, business trust, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.
          “Place of Payment” means the place or places where the principal of (and Make-Whole Amount, if any) and interest, if any, on such Securities are payable as specified as contemplated by Section 1002.
          “Principal Asset” means (i) any real property interest (all such interests forming an integral part of a single development or operation being considered as one interest), including any mining claims and leases, and any plants, buildings or other improvements thereon, and any part thereof, located in Canada or the United States that is held by the Parent Guarantor or any Restricted Subsidiary and has a net book value, on the date as of which the determination is being made, exceeding 5% of Consolidated Net Tangible Assets (other than any such interest that the Board of Directors of the Parent Guarantor determines by resolution is not material to the business of the Parent Guarantor and its Subsidiaries taken as a whole) or (ii) any of the capital stock or debt securities issued by any Restricted Subsidiary.
          “Purchase Money Mortgage” means any Lien on any Principal Asset (or the capital stock or debt securities of any Restricted Subsidiary that acquires or owns any Principal Asset) incurred in connection with the acquisition of that Principal Asset or the construction or repair of any fixed improvements on that Principal Asset (or in connection with financing the costs of acquisition of that Principal Asset or the construction or repair of improvements on that Principal Asset) provided that the principal amount of Indebtedness secured by any such Lien shall at no time exceed 100% of the original cost to the Parent Guarantor or any Restricted Subsidiary of the Principal Asset or such construction or repairs.
          “rate(s) of exchange” has the meaning specified in Section 114.
          “Redemption Date”, when used with respect to any Security to be redeemed, in whole or in part, means the date fixed for such redemption by or pursuant to this Indenture.
          “Redemption Price”, when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
          “Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of or within any Series means the date specified for that purpose in such Certificated Note or Global Note, as applicable.
          “Required Currency” has the meaning specified in Section 114.
          “Responsible Officer”, when used with respect to the Trustee, means the chairman or any vice-chairman of the board of directors, the chairman or any vice-chairman of the executive committee of the board of directors, the chairman of the trust committee, the president, any vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of the Trustee customarily performing functions similar to those performed by any of the above-designated officers, and also means,
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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.
          “Restricted Subsidiary” means any North American Subsidiary that owns or leases a Principal Asset referred to in clause (i) of the definition of “Principal Asset” or is engaged primarily in the business of owning or holding capital stock of one or more Restricted Subsidiaries. “Restricted Subsidiary”, however, does not include (1) any Subsidiary whose primary business consists of (a) financing operations in connection with leasing and conditional sale transactions on behalf of the Parent Guarantor and its Subsidiaries, (b) purchasing accounts receivable or making loans secured by accounts receivable or inventory or (c) being a finance company or (2) any Subsidiary which the Board of Directors of the Parent Guarantor has determined by resolution does not maintain a substantial portion of its fixed assets within Canada or the United States.
          “Revolving Period” means the period commencing with the Issue Date and terminating on the earlier of (i) the last Settlement Date under the Copper Swap Agreements or such later date on which any unpaid BIBC Settlement Date Payment Amounts have been paid (but in no event later than 90 days following the last Settlement Date under the Copper Swap Agreements) and (ii) the occurrence of an Event of Default under either Series of Notes or the later of (A) an Early Termination Date (as defined in the Copper Swap Agreements) under any Copper Swap Agreement or (B) the date on which it has been determined that an Early Termination Date, resulting from a “prohibited transaction” (within the meaning of Section 406 of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended), has occurred.
          “Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture; provided , however , that if at any time there is more than one Person acting as Trustee under this Indenture, “Securities” with respect to the Indenture as to which such Person is Trustee shall have the meaning stated in the first recital of this Indenture and shall more particularly mean Securities authenticated and delivered under this Indenture, exclusive, however, of Securities of any Series as to which such Person is not Trustee.
          “Security Register” and “Security Registrar” have the respective meanings specified in Section 208.
          “Series” means either Series A Barrick Notes or Series B Barrick Notes.
          “Settlement Dates” means October 16, 2006 and the second Business Day of each of the 35 calendar months occurring thereafter, and provided, further, that if any scheduled cash settlement date under the Copper Swap Agreements is postponed due a market disruption event, non-payment by a Counterparty or as otherwise provided under the Copper Swap Agreements, then the corresponding Settlement Date hereunder shall be postponed to coincide with the actual cash settlement date under the Copper Swap Agreements.
          “Settlement Date Quantity” has the meaning specified in Section 1101.
          “Special Record Date” for the payment of any Defaulted Interest on the Securities means a date fixed by the Trustee.
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          “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 (i) a corporation more than 50% of the outstanding Voting Stock of which at the time of determination is owned, directly or indirectly, by the Parent Guarantor or by one or more Subsidiaries of the Parent Guarantor or by the Parent Guarantor and one or more Subsidiaries of the Parent Guarantor and the votes carried by such Voting Stock are sufficient, if exercised, to elect a majority of the board of directors of the corporation or (ii) any other Person (other than a corporation) in which at the time of determination the Parent Guarantor or one or more Subsidiaries of the Parent Guarantor or the Parent Guarantor and one or more Subsidiaries of the Parent Guarantor, directly or indirectly, has or have at least a majority ownership and power to direct the policies, management and affairs of the Person.
          “Tax Event” has the meaning specified in Section 306.
          “Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder; provided , however , that if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any Series shall mean only the Trustee with respect to Securities of that Series.
          “United States” means the United States of America (including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
          “U.S. GAAP” means generally accepted accounting principles that are in effect from time to time in the United States of America.
          “Vice President”, when used with respect to the Issuer, the Parent Guarantor or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president”.
          “Voting Stock” means securities or other ownership interests of a corporation, partnership or other entity having by the terms thereof ordinary voting power to vote in the election of the board of directors or other persons performing similar functions of such corporation, partnership or other entity (without regard to the occurrence of any contingency).
SECTION 102. Compliance Certificates and Opinions .
          Upon any application or request by the Issuer or the Parent Guarantor to the Trustee to take any action under any provision of this Indenture, the Issuer or the Parent Guarantor shall furnish to the Trustee, an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture (including any covenant compliance with which constitutes a condition precedent) relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to
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which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
          Every certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture (other than pursuant to Section 1004) shall include:
     (1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
     (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
     (3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
     (4) a statement as to whether, in the opinion of each such individual, such covenant or condition has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
          In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
          Any certificate or opinion of an officer of the Issuer or the Parent Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, 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 Issuer or the Parent Guarantor, as the case may be, stating that the information with respect to such factual matters is in the possession of the Issuer or the Parent Guarantor 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.
          Any certificate or opinion of an officer of the Issuer or the Parent Guarantor or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of, or representations by, an accountant or firm of accountants in the employ of the Issuer or the Parent Guarantor, unless such officer or counsel, as the case may be, knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the accounting matters upon which such certificate or opinion may be based are erroneous. Any
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certificate or opinion of any independent firm of public accountants filed with the Trustee shall contain a statement that such firm is independent.
          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.
          (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of the Outstanding Securities of all Series or one or more Series, as the case may be, may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Issuer and the Parent Guarantor. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee, the Issuer and the Parent Guarantor, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 1606.
          (b) The fact and date of the execution by any Person of any such instrument or writing may be proved in any reasonable manner which the Trustee deems sufficient.
          (c) The principal amount and serial numbers of Securities held by any Person, and the date of holding the same, shall be proved by the Security Register.
          (d) If the Issuer or the Parent Guarantor shall solicit from the Holders of Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Issuer or the Parent Guarantor, as the case may be, may, at its option, by or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Issuer or the Parent Guarantor, as the case may be, shall have no obligation to do so. Such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record date.
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          (e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Issuer or the Parent Guarantor in reliance thereon, whether or not notation of such action is made upon such Security.
SECTION 105. Notices, etc. to Trustee, Parent Guarantor, and Issuer.
          Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other documents 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 Issuer or the Parent Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing or sent by facsimile to the Trustee at its Corporate Trust Office, 4 New York Plaza, 15 th Floor, New York, New York 10004, Attention: Denise S. Moore, Worldwide Securities Services, (212) 623-6216, or
     (2) the Issuer or the Parent Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, or sent by overnight courier to the Issuer and the Parent Guarantor addressed to First Floor, Enfield House, Upper Collymore Rock, St. Michael, Barbados, in the case of BIBC, and BCE Place, Canada Trust Tower, Suite 3700, 161 Bay Street, Toronto, Ontario, Canada M5J251, in the case of BMC (or any other Joint Obligor) and the Parent Guarantor or at any other address previously furnished in writing to the Trustee by the Issuer or the Parent Guarantor, as the case may be.
SECTION 106. Notice to Holders; Waiver.
          Where this Indenture provides for notice of any event to Holders of Securities by the Issuer, the Parent Guarantor or the Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders of Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders of Securities. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such notice.
          In case, by reason of the suspension of or irregularities in regular mail service or by reason of any other cause, it shall be impractical to mail notice of any event to Holders of Securities when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be directed by the Issuer shall be deemed to be sufficient giving of such notice for every purpose hereunder.
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          Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.
          Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents.
          The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns.
          All covenants and agreements in this Indenture by the Issuer and the Parent Guarantor shall bind its successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
          In case any provision in this Indenture or in any Security 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 110. Benefits of Indenture.
          Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto, any Authenticating Agent, any Paying Agent, any Securities Registrar and their successors hereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law.
          This Indenture, the Guarantees and the Securities shall be governed by and construed in accordance with the law of the State of New York.
SECTION 112. Legal Holidays.
          In any case where any Interest Payment Date, Redemption Date or Stated Maturity or Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of any Security, payment of principal (or Make-Whole Amount, if any) or interest, if any, need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date or at the Stated Maturity or Maturity; provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date, Stated Maturity or Maturity, as the case may be.
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SECTION 113. Agent for Service; Submission to Jurisdiction; Waiver of Immunities.
          By the execution and delivery of this Indenture, the Issuer, the Parent Guarantor and ABXFC (i) irrevocably designates and appoints, and acknowledges that it has irrevocably designated and appointed, CT Corporation System, 111 8 th Avenue, 13 th Floor, New York, New York 10011 as its authorized agent upon which process may be served in any suit, action or proceeding arising out of or relating to the Securities, the Guarantees or this Indenture that may be instituted in any United States federal or New York state court in The City of New York or brought under federal or state securities laws or brought by the Trustee (whether in its individual capacity or in its capacity as Trustee hereunder) or, subject to Section 507, any Holder of Securities or Guarantees in any United States federal or New York state court in The City of New York, (ii) submits to the non-exclusive jurisdiction of any such court in any such suit, action or proceeding, and (iii) agrees that service of process upon CT Corporation System and written notice of said service to the Issuer or the Parent Guarantor, as the case may be (mailed or delivered to its Secretary at its principal office specified in Section 105 of this Indenture and in the manner specified in Section 105 hereof), shall be deemed in every respect effective service of process upon the Issuer or the Parent Guarantor, as the case may be in any such suit, action or proceeding. The Issuer and the Parent Guarantor further agree to take any and all action, including the execution and filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment of CT Corporation System in full force and effect so long as any of the Securities shall be Outstanding or any amounts shall be payable in respect of any Securities.
          The Issuer and the Parent Guarantors irrevocably and unconditionally waive, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any such action, suit or proceeding in any such court or any appellate court with respect thereto and irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient form to the maintenance of any such action, suit or proceeding in any such court.
          To the extent that the Issuer or the Parent Guarantor has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, each of them hereby irrevocably waives such immunity in respect of its obligations under this Indenture, the Guarantees and the Securities, to the extent permitted by law.
SECTION 114. Conversion Currency
          The Issuer and the Parent Guarantor covenant and agree that the following provisions shall apply to conversion of Currency in the case of the Securities, the Guarantees and this Indenture to the fullest extent permitted by applicable law:
     (a) (i) If for the purposes of obtaining judgment in, or enforcing the judgment of, any court in any country, it becomes necessary to convert into a currency (the “Judgment Currency”) an amount due or contingently due under the Securities or this Indenture in any other currency (the “Required Currency”), then the conversion shall be made at the rate of exchange prevailing on the Business Day before the day on which the judgment is
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given or the order of enforcement is made, as the case may be (unless a court shall otherwise determine).
     (ii) If there is a change in the rate of exchange prevailing between the Business Day before the day on which the judgment is given or an order of enforcement is made, as the case may be (or such other date as a court shall determine), and the date of receipt of the amount due, the Issuer or the Parent Guarantor, as the case may be, shall pay such additional (or, as the case may be, such lesser) amount, if any, as may be necessary so that the amount paid in the Judgment Currency when converted at the rate of exchange prevailing on the date of receipt will produce the amount in the Required Currency originally due.
          (b) In the event of the winding-up of the Issuer or the Parent Guarantor at any time while any amount or damages owing under the Securities, the Guarantees and this Indenture, or any judgment or order rendered in respect thereof, shall remain unpaid or outstanding, the Issuer or the Parent Guarantor, as the case may be, shall indemnify and hold the Holders and the Trustee harmless against any deficiency arising or resulting from any variation in rates of exchange between (1) the date as of which the equivalent of the amount in the Required Currency (other than under this Subsection (b)) is calculated for the purposes of such winding-up and (2) the final date for the filing of proofs of claim in such winding-up. For the purpose of this Subsection (b) the final date for the filing of proofs of claim in the winding-up of the Issuer or the Parent Guarantor, as the case may be, shall be the date fixed by the liquidator or otherwise in accordance with the relevant provisions of applicable law as being the latest practicable date as at which liabilities of the Issuer or the Parent Guarantor, as the case may be, may be ascertained for such winding-up prior to payment by the liquidator or otherwise in respect thereto.
          (c) The obligations contained in Subsections (a)(ii) and (b) of this Section shall constitute separate and independent obligations of the Issuer or the Parent Guarantor, as the case may be, from its other obligations under the Securities, the Guarantees and this Indenture, shall give rise to separate and independent causes of action against the Issuer and the Parent Guarantor, shall apply irrespective of any waiver or extension granted by any Holder or Trustee from time to time and shall continue in full force and effect notwithstanding any judgment or order or the filing of any proof of claim in the winding-up of the Issuer or the Parent Guarantor for a liquidated sum in respect of amounts due hereunder (other than under Subsection (b) above) or under any such judgment or order. Any such deficiency as aforesaid shall be deemed to constitute a loss suffered by the Holders or the Trustee, as the case may be, and no proof or evidence of any actual loss shall be required by the Issuer, the Parent Guarantor or the applicable liquidator. In the case of Subsection (b) above, the amount of such deficiency shall not be deemed to be reduced by any variation in rates of exchange occurring between the said final date and the date of any liquidating distribution.
          (d) The term “rate(s) of exchange” shall mean the Bank of Canada noon rate for purchases on the relevant date of the Required Currency with the Judgment Currency, as reported by Telerate on screen 3194 (or such other means of reporting the Bank of Canada noon rate as may be agreed upon by each of the parties to this Indenture) and includes any Make-Whole Amounts and costs of exchange payable.
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SECTION 115. No Recourse Against Others.
          A director, officer, employee or shareholder, as such, of the Issuer or the Parent Guarantor shall not have any liability for any obligations of the Issuer or the Parent Guarantor under the Securities, the Guarantees or this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Security, each Holder shall waive and release all such liability. Such waiver and release shall be part of the consideration for the issue of the Securities.
SECTION 116. Multiple Originals.
          The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Indenture.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Form and Dating.
          The Securities shall be issued initially in the form of one or more certificated notes for each Series of Securities, substantially in the form set forth in Exhibit A (the “Certificated Notes”), 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 by law, or as may, consistently herewith, be determined by the Issuer. Any portion of the text of any Security may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Security. Each Security shall be dated the date of its authentication.
          The Securities and Guarantees shall, until the Note Exchange Date, 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.
          The terms and provisions contained in the form of the Securities annexed hereto as Exhibit A shall constitute, and are hereby expressly made, a part of this Indenture. To the extent applicable, the Issuer, the Parent Guarantor and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.
SECTION 202. Form of Trustee’s Certificate of Authentication.
          Subject to Section 611, the Trustee’s certificate of authentication shall be in substantially the following form:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
          Dated:                                          
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          This is one of the Securities of the Series designated therein referred to in the within-mentioned Indenture.
 	 	 	 	 	
 	THE BANK OF NEW YORK,
               as Trustee
 	 	
 	By  	 	 	
 	 	Authorized Officer 	 	

SECTION 203. Securities Issuable in Global Form
          Following the Note Exchange Date, any Security issued in global form (the “Global Notes”) shall represent such of the Outstanding Securities of such Series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities of such Series from time to time endorsed thereon and that the aggregate amount of Outstanding Securities of such Series represented thereby may from time to time be increased or decreased to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon instructions given by such Person or Persons as shall be specified therein or in an Issuer Order. The Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the Issuer Order. If an Issuer Order has been, or simultaneously is, delivered, any instructions by the Issuer 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.
          Payment of principal of (and Make-Whole Amount, if any) and interest, if any, on any Security in permanent global form shall be made to the Person or Persons specified therein. The Issuer, the Parent Guarantor, the Trustee and any agent of the Issuer, the Parent Guarantor or the Trustee shall treat as the Holder of such principal amount of Outstanding Securities represented by a permanent Global Note, the Holder of such permanent Global Note in registered form.
          The Global Notes of each Series, following the Note Exchange Date, shall (i) be registered in the name of the Depositary for such Global Notes or the nominee of such Depositary, (ii) be delivered to the Depositary or its nominee or to the Trustee as custodian for such Depositary and (iii) bear the following legend on the face thereof:
UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
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SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 204 OF THE INDENTURE.
          Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary, or the Trustee as its custodian, or under such Global Note, and the Depositary may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Security.
SECTION 204. Restrictive Legends.
          The Securities shall be stamped or otherwise be imprinted with the restrictive legend set forth below (the “Restricted Securities Legend”). The Restricted Securities Legend may be removed from such Securities, upon receipt by the Trustee of an Issuer Order, (i) on or after two years from the later of issuance of the Securities or the date such Security was last acquired from an “affiliate” of the Issuer within the meaning of Rule 144 under the Securities Act, (ii) in connection with a sale made pursuant to Rule 144 under the Securities Act following one year from such time, or (iii) in connection with any sale in a transaction registered under the Securities Act, provided that, if the legend is removed and such Security is subsequently held by such an affiliate of the Issuer, the legend shall be reinstated.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE PARENT GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (2) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD
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REFERRED TO ABOVE, THE HOLDER MUST [CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF] RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS NOTE TO THE TRUSTEE. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION”, “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
          Following the Note Exchange Date, every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Certificated Note or any portion thereof, whether pursuant to this Article or otherwise, shall be authenticated and delivered in the form of, and shall be, a registered Global Note, unless such Security is registered in the name of a Person other than the Depositary for such Global Note or a nominee thereof, in which case such Security shall be authenticated and delivered in definitive, fully registered form, without interest coupons.
          The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security, other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
          Following the Note Exchange Date, upon the transfer, exchange or replacement of Securities not bearing the Restricted Securities Legend on the terms provided herein, the Security Registrar shall deliver Securities of the same Series that do not bear the Restricted Securities Legend. Upon the transfer, exchange or replacement of Securities bearing the Restricted Securities Legend, the Security Registrar shall deliver only Securities of the same Series that bear the Restricted Securities Legend unless the requested transfer is after the time period referred to in Rule 144(k) under the Securities Act (written notice of which shall be provided to the Trustee) or there is delivered to the Security Registrar an Opinion of Counsel reasonably satisfactory to the Issuer and the Trustee to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act.
          By its acceptance of any Security bearing the Restricted Securities Legend, each Holder of such Security acknowledges the restrictions on transfer of such Security set forth in this Indenture and in the Restricted Securities Legend and agrees that it will transfer such Security only as provided in this Indenture. The Security Registrar shall not register a transfer of any Security unless such transfer complies with the restrictions on transfer of such Security set forth in this Indenture. In connection with any transfer of Securities, each Holder agrees by its acceptance of the Securities to furnish the Security Registrar or the Issuer such certifications, legal opinions or other information as either of them may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or a transaction not subject to, the registration requirements of the Securities Act; provided that the Security Registrar shall not be required to determine (but may rely on a determination made by the Issuer with respect to) the sufficiency of any such certifications, legal opinions or other information.
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SECTION 205. Execution, Authentication, Delivery and Dating
          The Securities shall be executed on behalf of the Issuer by any two directors or officers of the Issuer. The signature of any of these directors or officers on the Securities may be the manual or facsimile signatures of the present or any future such authorized director or officer and may be imprinted or otherwise reproduced on the Securities.
          Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Issuer shall bind the Issuer 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 after the execution and delivery of this Indenture, the Issuer may deliver Securities of any Series in accordance with the terms of this Indenture, executed by the Issuer and endorsed by the Parent Guarantor to the Trustee for authentication, together with an Issuer Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Issuer Order shall authenticate and deliver such Securities.
          In authenticating the Securities, and accepting the responsibilities under this Indenture in relation to the Securities, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion or Opinions of Counsel of the Issuer and the Parent Guarantor stating:
     (a) that the form the Securities and the Guarantees have been established in conformity with the provisions of this Indenture;
     (b) that the Securities and the Guarantees, when completed by appropriate insertions and executed and delivered by the Issuer and the Parent Guarantor to the Trustee for authentication in accordance with this Indenture, authenticated and delivered by the Trustee in accordance with this Indenture and issued by the Issuer and the Parent Guarantor in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute the legal, valid and binding obligations of the Issuer and the Parent Guarantor, respectively, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting the enforcement of creditors’ rights, to general equitable principles and to such other qualifications as such counsel shall conclude do not materially affect the rights of Holders of the Securities;
     (c) that all laws and requirements in respect of the execution and delivery by the Issuer and by the Parent Guarantor of the Guarantees, have been complied with and that authentication and delivery of the Securities by the Trustee will not violate the terms of this Indenture;
     (d) that each of the Issuer and the Parent Guarantor has the corporate power to issue the Securities and any Guarantees, respectively, and has duly taken all necessary corporate action with respect to such issuance; and
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     (e) that the issuance of the Securities and any Guarantees will not contravene the articles of incorporation or by-laws of the Issuer or the Parent Guarantor, or result in any violation of any of the terms or provisions of any law or regulation.
          The Trustee shall not be required to authenticate and deliver any such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
          Each Security shall be dated the date of its authentication. No Security or Guarantee endorsed thereon shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual signature of an authorized officer, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled, together with the Guarantee endorsed thereon to the benefits of this Indenture. Notwithstanding the foregoing, if the Securities shall have been authenticated and delivered hereunder but never issued and sold by the Issuer, and the Issuer shall deliver the Securities to the Trustee for cancellation, together with a written statement (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that the Securities have never been issued and sold by the Issuer, for all purposes of this Indenture the Securities shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
          The Securities shall be issuable only in registered form without coupons and only in denominations of $100,000 in principal amount and any $1,000 integral multiple thereof.
SECTION 206. Transfer and Exchange
          On the Note Exchange Date, the Certificated Notes shall be automatically exchanged for Global Notes. Upon the request of the Issuer, in connection with the issuance of any Security in global form pursuant to this Indenture, the Trustee shall use its reasonable efforts to fulfill any requirements of the Depositary, including but not limited to executing and delivering to the Depositary any documents required by the Depositary, in order for such Security to be issued in global form and registered in the name of the Depositary or its nominee. For greater certainty, upon request of the Issuer, the Trustee shall, or shall cause one of its affiliates that is a participant of the Depositary to, complete and deliver to the Depositary an eligibility questionnaire executed on behalf of the Trustee or such affiliate in relation to any such Security to be issued in global form.
          The Issuer shall cause to be kept at the Corporate Trust Office of the Trustee a register for each Series of Securities issued by the Issuer (the registers maintained in the Corporate Trust Office of the Trustee and in any other office or agency of the Issuer 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 Issuer shall provide for the registration of Securities and of transfers of Securities. The Security Register shall be in written form or any other form capable of being converted into written form within a reasonable time. At all reasonable times, the Security Register shall be open to inspection by the Trustee. The
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Trustee is hereby initially appointed as security registrar (the “Security Registrar”) for the purpose of registering Securities and transfers of Securities as herein provided. The Issuer shall have the right to remove and replace from time to time the Security Registrar for the Securities; provided , however , that no such removal or replacement shall be effective until a successor Security Registrar with respect to such Series of Securities shall have been appointed by the Issuer and shall have accepted such appointment by the Issuer. In the event that the Trustee shall not be or shall cease to be the Security Registrar with respect to the Securities, it shall have the right to examine the Security Register for such Series at all reasonable times. There shall be only one Security Register for each Series of Securities.
          Upon surrender for registration of transfer of any Security at the office or agency in a Place of Payment, the Issuer shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee, one or more replacement Securities of the same Series, of any authorized denominations and of a like aggregate principal amount and tenor and evidencing the same indebtedness and having endorsed thereon a Guarantee executed by the Parent Guarantor.
          At the option of the Holder, the Securities may be exchanged for other replacement Securities of the same Series, of any authorized denomination and of a like aggregate principal amount and tenor and evidencing the same indebtedness, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and deliver, the Securities, and having endorsed thereon a Guarantee executed by the Parent Guarantor, which the Holder making the exchange is entitled to receive.
          Notwithstanding the foregoing, any permanent Global Note shall be exchangeable only as provided in this paragraph and the two following paragraphs. If any beneficial owner of an interest in a permanent Global Note is entitled to exchange such interest for Securities of such Series and of like tenor and principal amount of another authorized form and denomination, and provided that any applicable notice provided in the permanent Global Note shall have been given, then without unnecessary delay but in any event not later than the earliest date on which such interest may be so exchanged, the Issuer shall deliver to the Trustee definitive Securities in aggregate principal amount equal to the principal amount of such beneficial owner’s interest in such permanent Global Note, executed by the Issuer and having a Guarantee executed by the Parent Guarantor endorsed thereon. On or after the earliest date on which such interests may be so exchanged, such permanent Global Note shall be surrendered by the Depositary for such permanent Global Note to the Trustee, as the Issuer’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge, and the Trustee shall authenticate and deliver, in exchange for each portion of such permanent Global Note, an equal aggregate principal amount of definitive Securities of the same Series of authorized denominations and of like tenor and evidencing the same indebtedness as the portion of such permanent Global Note to be exchanged.
          If at any time the Depositary notifies the Issuer that it is unwilling or unable to continue as Depositary for the Securities or if at any time the Depositary shall no longer be a clearing agency registered as such under the Securities Exchange Act of 1934, as amended, the Issuer shall appoint a successor depositary with respect to the Securities. If a successor to the Depositary for Securities is not appointed by the Issuer within 90 days after the Issuer receives
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such notice or becomes aware of such condition, as the case may be, the Issuer’s election shall no longer be effective and the Issuer will execute, and the Trustee, upon receipt of an Issuer Order for the authentication and delivery of definitive Securities of such Series, will authenticate and deliver replacement Securities of such Series in definitive registered form, in authorized denominations and with duly executed Guarantees duly endorsed thereon, and in an aggregate principal amount equal to the principal amount of the Global Note or Securities representing such Series and evidencing the same indebtedness in exchange for such Global Note or Securities. The provisions of the last sentence of the immediately preceding paragraph shall be applicable to any exchange pursuant to this paragraph.
          The Issuer may at any time and in its sole discretion determine that the Securities of any Series issued in the form of one or more global Securities shall no longer be represented by such Global Note or Securities. In such event, the Issuer will execute, and the Trustee, upon receipt of an Issuer Order for the authentication and delivery of definitive Securities of such Series, will authenticate and deliver replacement Securities of such Series in definitive registered form, in authorized denominations and with duly executed Guarantees duly endorsed thereon, and in an aggregate principal amount equal to the principal amount of the Global Note or Securities representing such Series and evidencing the same indebtedness in exchange for such Global Note or Securities. The provisions of the last sentence of the second preceding paragraph shall be applicable to any exchange pursuant to this paragraph.
          Upon the exchange of a Global Note for Securities in definitive registered form, such Global Note shall be cancelled by the Trustee. Securities issued in exchange for a Global Note pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Global Note, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee in writing. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered.
          All Securities and Guarantees issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Issuer and the Parent Guarantor, respectively, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities and the Guarantees 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 Issuer or the Security Registrar) be duly endorsed, or be accompanied by a written instrument of transfer, in form satisfactory to the Issuer and the Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.
          No service charge shall be made for any registration of transfer or exchange or redemption of any Series of Securities, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities.
          The Issuer shall not be required (i) to issue, register the transfer of or exchange Securities of any Series during a period beginning at the opening of business 15 days before the day of the selection for redemption of Securities of that Series and ending at the close of business on the day of the mailing of the relevant notice of redemption, or (ii) to register the transfer of or
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exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
SECTION 207. Mutilated, Destroyed, Lost and Stolen Securities
          If any mutilated Security is surrendered to the Trustee, the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor a replacement Security of the same Series and of like tenor and principal amount and evidencing the same indebtedness and having endorsed thereon a Guarantee executed by the Parent Guarantor and bearing a number not contemporaneously outstanding.
          If there shall be delivered to the Issuer 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 Issuer or the Trustee that such Security has been acquired by a bona fide purchaser, the Issuer shall execute and upon Issuer Order the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a replacement Security of the same Series and of like tenor and principal amount and evidencing the same indebtedness and having endorsed thereon a Guarantee executed by the Parent Guarantor and bearing a number not contemporaneously outstanding.
          Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a replacement Security, pay such Security.
          Upon the issuance of any replacement Security under this Section, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
          Every replacement Security of any Series and the Guarantee endorsed thereon issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Security, shall constitute a contractual obligation of the Issuer and the Parent Guarantor, respectively, whether or not the mutilated, 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 208. Payment of Principal and Interest; Interest Rights Preserved.
          (a) Interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Security (or one or more predecessor Securities) is registered at the close of business on the regular record date for such interest at the office or agency of the Issuer maintained for such purpose pursuant to Section 1002; provided , however , that each installment of interest, if any, on
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any Security may at the Issuer’s option be paid by (i) mailing a check for such interest, payable to or upon the written order of the Person entitled thereto, to the address of such Person as it appears on the Security Register or (ii) wire transfer to an account located in the United States maintained by the Person entitled to such payment as specified in the Security Register. Principal paid in relation to any Security at Maturity shall be paid to the Holder of such Security only upon presentation and surrender of such Security to any office or agency referred to in this Section 208(a).
          If a Note Exchange Date occurs on or after a Record Date but prior to the corresponding Interest Payment Date, then the Issuer shall pay the accrued Interest to the holders of record as of the Record Date of the corresponding series of ABXFC Notes in lieu of paying such accrued interest to the Holders on such Interest Payment Date.
          Any interest on any Security which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date shall forthwith cease to be payable to the Holder on the relevant regular record date by virtue of having been such Holder, and such defaulted interest and interest on such defaulted interest (to the extent lawful) at the rate specified in the Securities of such Series (such defaulted interest and, if applicable, interest thereon herein collectively called “Defaulted Interest”) shall be paid by the Issuer, at its election in each case, as provided in clause (1) or (2) below:
     (1) The Issuer 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 Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of such Series and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money in Dollars equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Special Record Date and, in the name and at the expense of the Issuer, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given in the manner provided in Section 106, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so given, such Defaulted Interest shall be paid to the Persons in whose name the Securities of such Series (or their respective predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2).
     (2) The Issuer may make payment of any Defaulted Interest on the Securities of any Series in any other lawful manner.
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SECTION 209. Outstanding Securities .
          Each Series of Securities outstanding at any time will consist of all Securities that have been authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation and those described in this Section as not outstanding.
          If a Note is replaced pursuant to Section 207, it ceases to be outstanding unless and until the Trustee and the Issuer receive proof satisfactory to them that the replaced Security is held by a bona fide purchaser.
          If the Paying Agent (other than the Issuer or an Affiliate of the Issuer) holds on the maturity date of such Series of Securities money sufficient to pay Securities of that Series payable on that date, then on and after that date such Securities cease to be outstanding and interest on them shall cease to accrue.
          A Security does not cease to be outstanding because the Issuer or one of its Affiliates holds such Security, provided, however , that in determining whether the Holders of the requisite principal amount of the outstanding Securities of such Series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Securities of such Series owned by the Issuer or the Parent Guarantors or any Affiliate of the Issuer or any Parent Guarantor 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 or waiver, only Securities of such Series which a Responsible Officer of the Trustee has actual knowledge 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 Issuer or any Parent Guarantor or any Affiliate of the Issuer or the Parent Guarantor.
SECTION 210. Cancellation
          All Securities surrendered for payment, redemption, registration of transfer shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Securities so delivered to the Trustee shall be promptly cancelled by it. The Issuer or the Parent Guarantor may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Issuer or the Parent Guarantor may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Issuer has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. If the Issuer shall so acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered to the Trustee for cancellation. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures and certification of their disposal delivered to the Issuer unless by Issuer Order the Issuer shall direct that cancelled Securities be returned to it.
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SECTION 211. Computation of Interest
          Interest on the Securities of each Series shall be computed on the basis of a 360-day year of twelve 30-day months. For the purposes of disclosure under the Interest Act (Canada), the yearly rate of interest which is equivalent to the rate payable hereunder is the rate payable hereunder multiplied by the actual number of days in the year divided by 360.
SECTION 212. CUSIP Numbers
          The Issuer in issuing the Securities may use “CUSIP”, “CINS” or “ISIN” numbers (if then generally in use), and the Issuer and the Trustee shall use CUSIP, CINS or ISIN numbers, as the case may be, in notices of redemption or exchange as a convenience to Holders of the applicable Series of Securities; provided that any such notice shall state that no representation is made as to the correctness of such numbers either as printed on such Securities or as contained in any notice of redemption or exchange and that reliance may be placed only on the other identification numbers printed on such Securities. The Issuer shall promptly notify the Trustee in writing of any change in “CUSIP”, “CINS” or “ISIN” numbers for the applicable Series of Securities.
SECTION 213. Persons Deemed Owners
          Prior to due presentment of a Security for registration of transfer, the Issuer, the Parent Guarantor, the Trustee and any agent of the Issuer, the Parent Guarantor 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 the Principal Amount of the Security or the payment of any Redemption Price, in respect thereof, and accrued interest, for all purposes whatsoever, whether or not such Security is overdue, and none of the Issuer, the Trustee and any of their respective agents shall be affected by notice to the contrary.
          None of the Issuer, the Parent Guarantor, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Security in global form or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
          Notwithstanding the foregoing, with respect to any Global Note, nothing herein shall prevent the Issuer, the Parent Guarantor, the Trustee, or any agent of any of the foregoing from giving effect to any written certification, proxy or other authorization furnished by any depositary, as a Holder, with respect to such Global Note or impair, as between such depositary and owners of beneficial interests in such Global Note, the operation of customary practices governing the exercise of the rights of such depositary (or its nominee) as Holder of such Global Note.
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ARTICLE THREE
OPTIONAL REDEMPTION
SECTION 301. Right to Redeem; Notices to Trustee . (a) Optional Redemption . The Securities of each Series will be redeemable on any Interest Payment Date, at the option of the applicable Issuer, in whole at any time or in part from time to time, following the Note Exchange Date, on at least 30 days’ but no more than 60 days’ prior written notice mailed to the Holders of the Securities of such Series to be redeemed. Subject to Section 301(b), the redemption price (the “Redemption Price”) of such Securities, other than in the case of a redemption following a Tax Event pursuant to Section 306, will be equal to the sum of
(i) the principal amount of the Securities to be redeemed, and
(ii) the accrued and unpaid interest thereon, and
(iii) the sum of the present values of the remaining scheduled payments of interest on the Securities to be redeemed (exclusive of interest accrued to the applicable Redemption Date) discounted to such Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 20 basis points (in the case of the Series A Barrick Notes) and 25 basis points (in the case of the Series B Barrick Notes) (each, a “Make-Whole Amount”),
Notwithstanding the foregoing, installments of interest on the Securities being redeemed whose Stated Maturity is on or prior to the relevant Redemption Date will be payable to the Holders of such Securities, or one or more predecessor Securities, registered as such at the close of business on the relevant record dates according to their terms.
          In connection with any redemption of the Securities pursuant to the provisions described in the immediate preceding paragraph, the following terms apply:
          “Comparable Treasury Issue” means, with respect to any Redemption Date for the Securities to be redeemed, the United States Treasury security selected by the Independent Investment Banker as having a maturity comparable to the remaining term of the Series 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 comparable maturity to the remaining term of the Series of such Securities to be redeemed.
          “Comparable Treasury Price” means, with respect to any Redemption Date for the Series of Securities to be redeemed, (a) the average of four Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, (b) if the Issuer obtains fewer than four but more than one such Reference Treasury Dealer Quotations for such Redemption Date, the average of all such quotations or (c) if the Issuer obtains only one such Reference Treasury Dealer Quotation for such Redemption Date, that Reference Treasury Dealer Quotation.
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          “Independent Investment Banker” means, with respect to any Redemption Date for the Series of Securities to be redeemed, the Reference Treasury Dealer appointed by the Issuer.
          “Reference Treasury Dealer” means, with respect to any Redemption Date for the Securities, (a) each of UBS Securities LLC and Morgan Stanley & Co. Incorporated and their respective successors or, in each case, one of their respective affiliates which is a Primary Treasury Dealer; provided, however, that if any of the foregoing shall cease to be a primary U.S. government securities dealer in the United States (a “Primary Treasury Dealer”), the Issuer shall substitute therefor another Primary Treasury Dealer, and (b) two other Primary Treasury Dealers selected by the Issuer.
          “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date for the Securities of this Series, the average, as determined by the Issuer, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Issuer by such Reference Treasury Dealer at 5:00 p.m. New York City time on the third Business Day preceding such Redemption Date.
          “Treasury Rate” means, with respect to any Redemption Date for the Securities to be redeemed,

 	(1)	 	the yield, under the heading that represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15 (519)” or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities”, for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the Final Maturity Date for the Securities, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month); or	
 		
 	(2)	 	if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using 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.	
          The Treasury Rate shall be calculated on the third Business Day preceding the applicable Redemption Date.
SECTION 302. Selection by Trustee of Securities to be Redeemed
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          If less than all the Securities of any Series are to be redeemed, the particular Securities of such Series 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 lot or in such manner as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions of the principal of Securities of such Series.
          The Trustee shall promptly notify the Issuer and the Parent Guarantor in writing of the Securities of such Series selected for redemption and, in the case of any Securities of such Series selected for partial redemption, the principal amount thereof to be redeemed.
          For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.
SECTION 303. Notice of Redemption
          A notice of redemption shall be given in the manner provided for in Section 106 not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed. All notices of redemption shall state:
     (i) the Redemption Date;
     (ii) the Redemption Price and the amount of accrued interest to the Redemption Date payable, if any;
     (iii) if less than all the Outstanding Securities of any Series are to be redeemed, the identification of the particular Securities of such Series (and, in the case of partial redemption, the name of each applicable Issuer and the principal amount corresponding to each such Issuer), to be redeemed;
     (iv) in case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the Holder will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed;
     (v) that on the Redemption Date, the Redemption Price and accrued interest, if any, to the Redemption Date will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date; and
     (vi) the Place or Places of Payment where such Securities are to be surrendered for payment of the Redemption Price and accrued interest, if any.
          Notice of redemption of Securities to be redeemed at the election of the Issuer shall be given by the Issuer or, at the Issuer’s request, by the Trustee in the name and at the expense of the Issuer.
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SECTION 304. Deposit of Redemption Price
          Prior to any Redemption Date, the Issuer shall deposit or cause to be deposited with the Trustee or with a Paying Agent (or, if the Issuer is acting as its own Paying Agent, segregate and hold in trust) an amount of money sufficient to pay the Redemption Price of, and accrued interest, if any, on, all the Securities which are to be redeemed on that date.
          The Issuer will cause the bank through which payment of funds to the Trustee or the Paying Agent will be made to deliver to the Trustee or the Paying Agent, as the case may be, by 10:00 a.m. (New York Time) two Business Days prior to the due date of such payment an irrevocable confirmation (by tested telex or authenticated Swift MT 100 Message) of its intention to make such payment.
SECTION 305. Securities Payable on Redemption Date
          Notice of redemption having been given as aforesaid, the Securities 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 Issuer shall default in the payment of the Redemption Price) 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 Issuer at the Redemption Price.
          If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and Make-Whole Amount, if any) shall, until paid, bear interest from the Redemption Date at the rate of interest set forth in such Security.
SECTION 306. Tax Redemption
          The Issuer shall have the right to redeem, at any time, the Securities of any Series issued by the Issuer, in whole but not in part, at a Redemption Price equal to the relevant principal amount plus accrued but unpaid interest, if (1) (a) as a result of any change (including any announced prospective change) in or amendment to the laws (or any regulations or rulings promulgated thereunder) of the jurisdiction of organization of the Issuer or the Parent Guarantor, as applicable, or of any political subdivision or taxing authority thereof or therein affecting taxation, or any change in official position regarding the application or interpretation of such laws, regulations or rulings (including a holding by a court of competent jurisdiction), which change or amendment is announced or becomes effective on or after the date hereof with respect to the Securities of such Series and which in a written opinion to the Issuer or the Parent Guarantor, as applicable, of legal counsel of recognized standing has resulted or will result (assuming, in the case of any announced prospective change, that such announced change will become effective as of the date specified in such announcement and in the form announced) in the Issuer or the Parent Guarantor, as applicable, becoming obligated to pay, on the next succeeding date on which interest is due, Additional Amounts with respect to any Security of such Series, or (b) on or after October 4, 2004, any action has been taken by any taxing authority of, or any decision has been rendered by a court of competent jurisdiction in the jurisdiction of organization of the Issuer or the Parent Guarantor, as applicable, or any political subdivision or taxing authority thereof or therein, including any of those actions specified in (a) above, whether or not such action was taken or decision was rendered with respect to the Issuer or the Parent
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Guarantor, or any change, amendment, application or interpretation shall be officially proposed, which, in any such case, in the written opinion to the Issuer or the Parent Guarantor, as applicable, of legal counsel of recognized standing, will result (assuming, in the case of any announced prospective change, that such announced change will become effective as of the date specified in such announcement and in the form announced) in the Issuer or the Parent Guarantor, as applicable, becoming obligated to pay, on the next succeeding date on which interest is due, Additional Amounts with respect to any Security of such Series and (2) in any such case, the Issuer or the Parent Guarantor, in its business judgment, determines that such obligation cannot be avoided by the use of reasonable measures available to it (any such case, a “Tax Event”); provided , however , that (i) no such notice of redemption may be given earlier than 60 or later than 30 days prior to the earliest date on which the Issuer or the Parent Guarantor would be obligated to pay such Additional Amounts were a payment in respect of the Securities of such Series then due; (ii) at the time such notice of redemption is given, such obligation to pay such Additional Amounts remains in effect; and (iii) with respect to any jurisdiction of organization of any such successor other than Canada or any province or territory of Canada, or the United States, any state thereof or the District of Columbia, the consolidation, amalgamation, merger or other transaction that resulted in such successor becoming the successor to the Issuer or the Parent Guarantor was not undertaken for the primary purpose of redeeming the Securities of such Series. Any redemption pursuant to this Section 306 shall be effected in accordance with the other provisions of this Article Three.
          In the event that the Issuer elects to redeem the Securities of any Series pursuant to this Section 306, it shall deliver to the Trustee, prior to the giving of the notice of redemption to Holders, an Officers’ Certificate stating that it is entitled to redeem the Securities of such Series pursuant to this Section.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture .
          This Indenture shall upon Issuer Request of the Issuer cease to be of further effect with respect to any Series of Securities issued by the Issuer specified in the Issuer Request (except as to any surviving rights of registration of transfer or exchange of Securities of such Series expressly provided for herein or pursuant hereto, and the rights of Holders of Outstanding Securities to receive, solely from the trust fund described in subclause (B) of clause (1) of this Section, payments in respect of the principal of (and Make-Whole Amount, if any) and interest, if any, on such Securities when such payments are due and except as provided in the last paragraph of this Section 401) and the Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such Series when
          (1) either
     (A) all Securities of such Series theretofore authenticated and delivered (other than Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 207, and Securities for whose payment money has theretofore been deposited in trust with the Trustee or any Paying Agent or segregated and held in trust by such Issuer and thereafter repaid
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to such Issuer, as provided in Section 1003) have been delivered to the Trustee for cancellation; or
     (B) all Securities of such Series thereto not theretofore delivered to the Trustee for cancellation
     (i) have become due and payable, or
     (ii) will become due and payable at their Stated Maturity within one year, or
     (iii) if redeemable at the option of the Issuer, 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 Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose an amount in Dollars, sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal (and Make-Whole Amount, if any) and interest, if any, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
     (2) the Issuer or the Parent Guarantor has paid or caused to be paid all other sums payable hereunder by the Issuer or the Parent Guarantor, as the case may be, and
     (3) the Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such Series have been complied with.
          Notwithstanding the satisfaction and discharge of this Indenture, the provisions of Section 1005, the obligations of the Issuer to the Trustee under Section 606, the obligations of the Trustee to any Authenticating Agent under Section 611 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section, the provisions of Sections 113, 114, 306 (and any other applicable provisions of Article Three), 1002 and 1003 and the obligations of the Trustee under Section 402 shall survive such satisfaction and discharge and remain in full force and effect.
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 Issuer or the Parent Guarantor acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and Make-Whole Amount, if any) and interest, if any, for whose payment such money has been
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deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default .
          “Event of Default”, wherever used herein with respect to Securities of any 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 the principal of (or Make-Whole Amount, if any, on) any Security of that Series (other than any BIBC Settlement Date Payment Amount) at its Maturity; or
     (2) default in the payment of any interest on any Security of that Series, when such interest becomes due and payable, and continuance of such default for a period of 30 days; or
     (3) default in the payment of any BIBC Settlement Date Payment Amount, or in the performance, or breach, of any covenant or agreement of the Issuer or the Parent Guarantor in this Indenture in respect of the Securities of that Series (other than a default in the performance or breach of a covenant or agreement which is specifically dealt with elsewhere in this Section), where such default or breach continues for a period of 90 days after there has been given, by registered or certified mail, written notice to the Issuer and the Parent Guarantor by the Trustee or after written notice to the Issuer, the Parent Guarantor and the Trustee or after written notice to the Issuer, the Parent Guarantor and the Trustee by the Holders of at least 25% in principal amount of all Outstanding Securities affected thereby; or
     (4) failure to pay when due, after the expiration of any applicable grace period, any portion of the principal of, or involuntary acceleration of the maturity (which acceleration is not rescinded or annulled within 10 days) of, Indebtedness of the Issuer or the Parent Guarantor having an aggregate principal amount outstanding in excess of the greater of (i) $150,000,000 and (ii) 5% of Consolidated Net Tangible Assets; or
     (5) any of the Guarantees cease to be in full force and effect (other than in accordance with the terms of this Indenture) and such default continues for 10 days after written notice to the Issuer and the Parent Guarantor by the Trustee or after written notice to the Issuer, the Parent Guarantor and the Trustee by Holders of at least 25% in principal amount of al outstanding Notes affected thereby, or the Parent Guarantor denies or disaffirms its obligations under any of the Guarantees; or
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     (6) the Issuer or the Parent Guarantor pursuant to or under or within the meaning of any Bankruptcy Law:
     (i) commences a proceeding or makes an application seeking a Bankruptcy Order;
     (ii) consents to the making of a Bankruptcy Order or the commencement of any proceeding or application seeking the making of a Bankruptcy Order against it;
     (iii) consents to the appointment of a Custodian of it or for any substantial part of its property;
     (iv) makes a general assignment for the benefit of its creditors or files a proposal or notice of intention to make a proposal or other scheme of arrangement involving the rescheduling, reorganizing or compromise of its indebtedness;
     (v) files an assignment in bankruptcy;
     (vi) consents to the filing of an assignment in bankruptcy or the appointment of or taking possession by a Custodian;
     (7) a court of competent jurisdiction in any involuntary case or proceeding makes a Bankruptcy Order against the Issuer or the Parent Guarantor, and such Bankruptcy Order remains unstayed and in effect for 90 consecutive days; or
     (8) a Custodian shall be appointed out of court with respect to the Issuer or the Parent Guarantor, or with respect to all or any substantial part of the property of the Issuer or the Parent Guarantor and such appointment shall not have been vacated, discharged, or stayed or bonded pending appeal within 90 days, or any encumbrancer shall take possession of all or any substantial part of the property of the Issuer or the Parent Guarantor and such possession shall not have reverted to the Issuer or the Parent Guarantor, as applicable, within 90 days.
          “Bankruptcy Law” means, in the case of the Parent Guarantor, the Bankruptcy and Insolvency Act (Canada), Companies’ Creditors Arrangement Act (Canada), Winding-Up & Restructuring Act (Canada), or any other Canadian federal or provincial law and, in the case of any particular Issuer, the law of the jurisdiction of such Issuer relating to bankruptcy, insolvency, winding-up, liquidation, dissolution, reorganization or relief of debtors or any similar law now or hereafter in effect for the relief from, or otherwise affecting, creditors. “Custodian” means any receiver, interim receiver, receiver and manager, trustee, assignee, liquidator, sequestrator, monitor, custodian or similar official or agent or any other Person with like powers. “Bankruptcy Order” means an order made by a court of competent jurisdiction in a proceeding pursuant to or within the meaning of any Bankruptcy Law, containing an adjudication of bankruptcy or insolvency, or providing for liquidation, winding-up, dissolution or reorganization, or appointing a Custodian of a debtor or of all or any substantial part of a debtor’s property, or providing for the staying, arrangement, adjustment or compromise of indebtedness or other relief of a debtor.
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          The Issuer and the Parent Guarantor shall be required to furnish the Trustee, within 30 days after it becomes aware of the occurrence thereof, written notice of any event which would constitute an Event of Default under this Section 501(5) above.
SECTION 502. Acceleration of Maturity; Rescission and Annulment .
          If an Event of Default described in clause (1) or (2) of Section 501 with respect to Securities of any Series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that Series may declare the principal amount of all of the Outstanding Securities of that Series and any accrued but unpaid interest thereon to be due and payable immediately, by a notice in writing to the Issuer and the Parent Guarantor (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified portion thereof) and any accrued but unpaid interest thereon shall become immediately due and payable. If an Event of Default described in clause (3) of Section 501 occurs and is continuing with respect to the Securities of one or more Series, 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 affected thereby (as one class) may declare the principal amount of all of the Outstanding Securities of such affected Series and any accrued but unpaid interest thereon to be due and payable immediately, by a notice in writing to the Issuer and the Parent Guarantor (and to the Trustee if given by the Holders) and upon any such declaration such principal amount (or specified portion thereof) and any accrued but unpaid interest thereon shall become immediately due and payable. If an Event of Default described in clause (4), (5), (6), (7) or (8) of Section 501 occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of all the Securities then Outstanding (as a class) may declare the principal amount of all of the Outstanding Securities and any accrued but unpaid interest thereon to be due and payable immediately, by a notice in writing to the Issuer and the Parent Guarantor (and to the Trustee if given by the Holders), and upon any such declaration such principal amount (or specified portion thereof) and any accrued but unpaid interest thereon shall become immediately due and payable.
          At any time after a declaration of acceleration with respect to Securities of any Series (or of all Series, as the case may be) has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter provided in this Article, the Holders of a majority in principal amount of the Outstanding Securities of such Series (or of all Series, as the case may be), by written notice to the Issuer, the Parent Guarantor and the Trustee, may rescind and annul such declaration and its consequences if:
     (1) the Issuer or the Parent Guarantor has paid or deposited with the Trustee a sum sufficient to pay in Dollars,
     (A) all overdue interest, if any, on all Outstanding Securities of that Series (or of all Series, as the case may be),
     (B) all unpaid principal of (and Make-Whole Amount, if any, on) all Outstanding Securities of that Series (or of all Series, as the case may be) which has become due otherwise than by such declaration of acceleration, and interest on such unpaid principal at the rate or rates prescribed therefor in such Securities,
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     (C) to the extent lawful, interest on overdue interest, if any, 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 (or of all Series, as the case may be), other than the non-payment of amounts of principal of or interest on Securities of that Series (or of all Series, as the case may be) which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee .
          The Issuer covenants that if:
     (1) default is made in the payment of any installment of interest on any Security issued by the Issuer and 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 Make-Whole Amount, if any, on) any Security issued by the Issuer at the Maturity thereof,
then the Issuer will, upon demand of the Trustee, pay to the Trustee for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities, and interest on any overdue principal (and Make-Whole Amount, if any) and to the extent lawful on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
          If the Issuer fails to pay such amounts forthwith upon such demand, the Trustee, in its own name as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Issuer, the Parent Guarantor or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Issuer, the Parent Guarantor or any other obligor upon such Securities, wherever situated.
          If an Event of Default with respect to Securities of any Series (or of all Series, as the case may be) 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 (or of all Series, as the case may be) 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
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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 the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Issuer, the Parent Guarantor or any other obligor upon the Securities or the property of the Issuer, the Parent Guarantor or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Issuer or the Parent Guarantor for the payment of overdue principal, Make-Whole Amount, if any, or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
     (i) to file and prove a claim for the whole amount of principal (and Make-Whole Amount, if any), owing and unpaid in respect of the Securities or the Guarantees and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
     (ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 606.
          Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the Guarantees 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.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities .
          All rights of action and claims under this Indenture, the Securities or the Guarantees 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.
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SECTION 506. Application of Money Collected .
          Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or Make-Whole Amount, if any) or interest, if any, 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 606;
           Second : To the payment of the amounts then due and unpaid for principal of (and Make-Whole Amount, if any) and interest, if any, on 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 Make-Whole Amount, if any) and interest, if any, respectively; and
           Third : The balance, if any, to the Person or Persons entitled thereto.
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, the Securities or the Guarantees, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
     (1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series;
     (2) the Holders of not less than 25% in principal amount of the Outstanding Securities of all Series affected by such Event of Default (determined as provided in Section 502 and, if more than one Series of Securities, as one class), shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
     (3) such Holder or Holders have offered to the Trustee reasonable indemnity 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 or more in principal amount of the Outstanding Securities of all Series affected by such Event of Default (determined as provided in Section 502 and, if more than one Series of Securities, as one class);
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Outstanding Securities of such affected Series, or
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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 Holders of Outstanding Securities of such affected Series. For purposes of clarity, it is hereby understood and agreed that an Event of Default described in clause (1), or (2) of Section 501 with respect to the Securities of any Series shall, for purposes of this Section 507, be deemed to affect only such Series of Securities.
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, as provided herein (including, if applicable, Article Fourteen) and in such Security (and the Guarantees endorsed thereon) of the principal of (and Make-Whole Amount, if any) and interest, if any, on, such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies .
          If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for 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 Issuer, the Parent Guarantor, the Trustee and the Holders of Securities 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, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver .
          No delay or omission of the Trustee or of any Holder of any Security 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 .
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          The Holders of not less than a majority in principal amount of the Outstanding Securities of all Series affected by an Event of Default (determined as provided in Section 502 and, if more than one Series of Securities, as one class) shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Outstanding Securities of such affected Series (and the Guarantees in respect thereof), provided in each case
     (1) such direction shall not be in conflict with any rule of law or with this Indenture,
     (2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
     (3) the Trustee need not take any action which might expose the Trustee to personal liability or be unduly prejudicial to the Holders of Outstanding Securities of such affected Series not joining therein.
For purposes of clarity, it is hereby understood and agreed that an Event of Default described in clause (1) or (2) of Section 501 with respect to the Securities of any Series shall, for purposes of this Section 512, be deemed to affect only such Series of Securities.
SECTION 513. Waiver of Past Defaults .
          Subject to Section 502, the Holders of not less than a majority in principal amount of the Outstanding Securities of all Series with respect to which a Default shall have occurred and be continuing (as one class if more than one Series) may on behalf of the Holders of all the Outstanding Securities of such affected Series waive any such past Default, and its consequences, except a Default
     (1) in respect of the payment of the principal of (or Make-Whole Amount, if any) or interest, if any, on any Security, or
     (2) in respect of a covenant or provision which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such affected Series.
          Upon any such waiver, any such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. For purposes of clarity, it is hereby understood and agreed that an Event of Default described in clause (1) or (2) of Section 501 with respect to the Securities of any Series shall, for purposes of this Section 513, be deemed to affect only such Series of Securities.
SECTION 514. Waiver of Stay or Extension Laws .
          The Issuer and the Parent Guarantor covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time
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hereafter in force, which may affect the covenants or the performance of this Indenture; and the Issuer and the Parent Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
SECTION 515. Undertaking for Costs .
          All parties to this Indenture agree, and each Holder of any Security by its acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of any undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or Make-Whole Amount, if any) or interest on any Security (or under any Guarantee) on or after the respective Stated Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date).
SECTION 516. Effect of Event of Default
          Upon the occurrence of an Event of Default under either Series of the Securities or an Early Termination Date (as defined in the Copper Swap Agreements) under any Copper Swap Agreement, the Revolving Period shall cease, the Settlement Date, if any, coinciding with the occurrence of the Event of Default under either Series of the Securities or Early Termination Date under a Copper Swap Agreement and all Settlement Dates thereafter shall not occur (and if such Event of Default or Early Termination Date occurs on a Settlement Date, such Settlement Date shall be deemed not to have occurred for the purposes of the terms of the Securities relating to the Obligation Transfer Amount) and the Securities shall thereafter evidence an obligation of the applicable Issuer to pay their respective portions of the principal and accrued interest thereon, the aggregate of which will equal the original principal amount of the Securities of that Series (assuming no Securities of such Series have been redeemed prior to such date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults .
          Within 90 days after the occurrence of any Default hereunder with respect to the Securities of any Series, the Trustee shall transmit a notice of such Default hereunder known to the Trustee, unless such Default shall have been cured or waived; provided , however , that, except in the case of a Default in the payment of the principal of (or Make-Whole Amount, if any) or interest, if any, on any Security of such Series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of
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directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders of Securities of such Series.
SECTION 602. Certain Rights of Trustee .
     (1) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
     (2) any request or direction of the Issuer mentioned herein shall be sufficiently evidenced by the Issuer Request or Issuer Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
     (3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’ Certificate;
     (4) the Trustee may consult with counsel and the written 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) except during a default, the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any Series pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
     (6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer and the Parent Guarantor, 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; and
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     (8) the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture.
          The Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of Securities .
          The recitals contained herein and in the Securities, except for the Trustee’s certificates of authentication, shall be taken as the statements of the Issuer and the Parent Guarantor, 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, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Issuer of Securities or the proceeds thereof.
SECTION 604. May Hold Securities .
          The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Issuer or of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities, may otherwise deal with the Issuer with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 605. Money Held in Trust .
          Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Issuer.
SECTION 606. Compensation and Reimbursement .
          Each of BIBC and the Parent Guarantor jointly and severally agree:
     (1) to pay to the Trustee from time to time such reasonable compensation as the Issuer and the Trustee shall from time to time agree in writing, for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
     (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
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     (3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith 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 or liability in connection with the exercise or performance of any of its powers or duties hereunder.
          The obligations of the Issuer under this Section to compensate the Trustee, to pay or reimburse the Trustee for expenses, disbursements and advances and to indemnify and hold harmless the Trustee shall constitute additional indebtedness hereunder and shall survive the satisfaction and discharge of this Indenture. As security for the performance of such obligations of the Issuer, the Trustee shall have a claim prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (or Make-Whole Amount, if any) or interest, if any, on particular Securities.
          When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 501(5), (6) or (7), the expenses (including reasonable charges and expense of its counsel) of and the compensation for such services are intended to constitute expenses of administration under any applicable bankruptcy, insolvency or other similar law.
          The provisions of this Section shall survive the termination of this Indenture.
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests .
          There shall be at all times a Trustee hereunder which shall be eligible to act as Trustee and shall have a combined capital and surplus (together with that of its parent, if applicable) of at least $50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of Federal, State, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor .
          (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 609.
          (b) The Trustee may resign at any time with respect to the Securities of one or more Series by giving written notice thereof to the Issuer. If the instrument of acceptance by a successor Trustee required by Section 609 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such Series.
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          (c) The Trustee may be removed at any time with respect to the Securities of any Series by Act of the Holders of not less than a majority in principal amount of the Outstanding Securities of such Series, delivered to the Trustee and to the Issuer.
          (d) If at any time:
     (1) the Trustee shall cease to be eligible under Section 607 and shall fail to resign after written request therefor by the Issuer or by any Holder who has been a bona fide Holder of a Security for at least six months, or
     (2) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer, by a Board Resolution, may remove the Trustee with respect to all Securities or the Securities of such Series, or (ii) 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 of such Series and the appointment of a successor Trustee or Trustees.
          (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more Series, the Issuer, 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). 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 Issuer and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee with respect to the Securities of such Series and to that extent supersede the successor Trustee appointed by the Issuer. If no successor Trustee with respect to the Securities of any Series shall have been so appointed by the Issuer or the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of a Security of such Series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such Series.
          (f) The Issuer 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 the Holders of Securities of such Series in the manner provided for in Section 106. Each notice shall include the name of the successor Trustee with respect to the Securities of such Series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor .
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          (a) 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 Issuer, to the Parent Guarantor and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Issuer, the Parent Guarantor or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
          (b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) Series, the Issuer, the Parent Guarantor, the retiring Trustee and each successor Trustee with respect to the Securities of one or more Series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those Series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those Series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each 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 Issuer, the Parent Guarantor or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those Series to which the appointment of such successor Trustee relates. Whenever there is a successor Trustee with respect to one or more (but less than all) Series of securities issued pursuant to this Indenture, the terms “Indenture” and “Securities” shall have the meanings specified in the provisos to the respective definitions of those terms in Section 101 which contemplate such situation.
          (c) Upon request of any such successor Trustee, the Issuer and the Parent Guarantor shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
          (d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
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SECTION 610. Merger, Conversion, Consolidation or Succession to Business .
          Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities 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. In case any of the Securities shall not have been authenticated by such predecessor Trustee, any successor Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor Trustee. In all such cases such certificates shall have the full force and effect which this Indenture provides for the certificate of authentication of the Trustee; provided , however , that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
SECTION 611. Appointment of Authenticating Agent .
          At any time when any of the Securities remain Outstanding, the Trustee may appoint an Authenticating Agent or Agents with respect to one or more Series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such Series and the Trustee shall give written notice of such appointment to all Holders of Securities of the Series with respect to which such Authenticating Agent will serve, in the manner provided for in Section 106. Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee, and a copy of such instrument shall be promptly furnished to the Issuer. 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 Issuer 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 corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect specified in this Section.
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          Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
          An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Issuer. 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 Issuer. 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 Issuer and shall give written notice of such appointment to all Holders of Securities of the Series with respect to which such Authenticating Agent will serve, in the manner provided for in Section 106. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
          The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 606.
          If an appointment with respect to one or more Series is made pursuant to this Section, the Securities of such Series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:
          Dated:                                          
          This is one of the Securities of the Series designated therein referred to in the within-mentioned Indenture.
 	 	 	 	 	
 	 	THE BANK OF NEW YORK	
 	 	                                as Trustee	
 	 	 	 	 	
 	 	By	 	 	
 	 	 	 	 	
 	 	 	 	     as Authenticating Agent	
 	 	 	 	 	
 	 	By	 	 	
 	 	 	 	 	
 	 	 	 	     Authorized Officer	
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ARTICLE SEVEN
HOLDERS’ LISTS AND REPORTS BY TRUSTEE, ISSUERS AND PARENT
GUARANTOR
SECTION 701. Disclosure of Names and Addresses of Holders .
          Every Holder of Securities, by receiving and holding the same, agrees with the Issuer, the Parent Guarantor and the Trustee that none of the Issuer, the Parent Guarantor or the Trustee or any agent of any of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request.
SECTION 702. Reports by the Parent Guarantor .
          The Parent Guarantor shall:
     (1) file with the Trustee, within 15 days after the Parent Guarantor files the same with the Commission (but in no event later than 50 days after the Parent Guarantor is required to make such filing with the Commission), copies of the annual reports containing audited financial statements and copies of quarterly reports containing unaudited financial statements; and
     (2) in the event that the Parent Guarantor is not required to remain subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to rules and regulations promulgated by the Commission, continue to file with the Commission and provide the Trustee;
     (a) within 140 days after the end of each fiscal year, annual reports on Form 20-F, 40-F or Form 10-K, as applicable (or any successor form), containing audited financial statements and the other information required to be contained therein (or required in such successor form); and
     (b) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, reports on Form 6-K or Form 10-Q (or any successor form), containing unaudited financial statements and the other information which, regardless of applicable requirements shall, at a minimum, contain such information required to be provided in quarterly reports under the laws of Canada or any province thereof to security holders of a corporation with securities listed on the Toronto Stock Exchange, whether or not the Parent Guarantor has any of its securities so listed.
     Each of such reports will be prepared in accordance with Canadian or United States disclosure requirements, as required by the appropriate form or report, and U.S. GAAP and/or accounting principles generally accepted in Canada, provided, however , that the Parent Guarantor shall not be so obligated to file such reports with the Commission if the Commission does not permit such filings; and
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          (3) following the Note Exchange Date, for so long as any of the Securities remain outstanding and are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, during any period in which the Parent Guarantor is not subject to Section 13 or 15(d) of the Exchange Act nor exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act, make available upon written request the information required by Rule 144A(d)(4) under the Securities Act to (i) any holder or beneficial owner of the Securities in connection with any sale of such Securities and (ii) any prospective purchaser of such Securities from any such holder or beneficial owner designated by the holder or beneficial owner.
SECTION 703. The Parent Guarantor to Furnish Trustee Names and Addresses of Holders .
          The Parent Guarantor will furnish or cause to be furnished to the Trustee:
     (1) semi-annually, not later than 15 days after the regular record date for interest for each Series of Securities, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of such Series as of such Regular Record Date, and
     (2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Parent Guarantor 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,
provided, however , that so long as the Trustee is the Security Registrar, no such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, AMALGAMATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Issuer and Parent Guarantor May Amalgamate or Consolidate, etc., Only on Certain Terms .
          Neither the Issuer nor the Parent Guarantor shall amalgamate or consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any other Person, unless:
     (1) in a transaction in which the Issuer or the Parent Guarantor, as the case may be, does not survive or continue in existence or in which the Issuer or the Parent Guarantor, as the case may be, transfers or leases its properties and assets substantially as an entirety to any other Person, the Person formed by such amalgamation or consolidation or into which the Issuer or the Parent Guarantor, as the case may be, is merged or the Person which acquires by conveyance or transfer or otherwise, or which leases, the properties and assets of the Issuer or the Parent Guarantor, as the case may be, substantially as an entirety (A) shall be a corporation, partnership or trust organized under the laws of Canada or any province or territory of Canada or the United States of America, any state thereof or the District of Columbia or, if such consolidation, amalgamation, merger or other transaction would not impair
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(as determined by resolution of the Board of Directors of the Parent Guarantor) the rights of the Holders of the Securities (including their rights under the Guarantees), in any other country, provided that if such successor entity is organized under the laws of a jurisdiction other than Canada or any province or territory of Canada, or the United States of America, any state thereof or the District of Columbia, the successor entity assumes by a supplemental indenture the obligations of the Issuer or the Parent Guarantor or both, as the case may be, under the Securities, the Guarantees and this Indenture to pay Additional Amounts, adding the name of such successor jurisdiction in addition to Canada in each place that Canada appears in Section 1404(4) of this Indenture and adding references to the provinces, territories, states or other applicable political subdivisions of such successor jurisdiction in addition to references to the provinces and territories of Canada appearing in Section 1404(4) of this Indenture and appropriately revising Section 1404(5) to add references to any “preference” or other similar period under applicable bankruptcy, insolvency or other similar laws of the successor jurisdiction or any province, territory, state or other political subdivision thereof and, if necessary, revising Sections 1404(5) and 1404(6) to extend the 91 day period referred to therein so that it is at least one day longer than any such “preference” or similar period of the successor jurisdiction; and (B) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the obligations of the Issuer or the Parent Guarantor or both, as the case may be, in respect of the Securities and, in the case of the Parent Guarantor, the Guarantees and the performance and observance of every covenant of the Indenture to be performed or observed by the Issuer or the Parent Guarantor, as the case may be;
     (2) immediately before and after giving effect to such transaction, no Event of Default or event that after notice or passage of time or both would be an Event of Default shall have occurred and be continuing; and
     (3) the Issuer, the Parent Guarantor or such Person shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, amalgamation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
          In the event that the Parent Guarantor shall enter into any amalgamation, consolidation, merger, conveyance, transfer or lease of the nature contemplated by the first paragraph of this Section 801, then the supplemental indenture contemplated by clause (1)(B) of such paragraph shall be entered into by the Parent Guarantor.
SECTION 802. Successor Person Substituted .
          Upon any consolidation or amalgamation by the Issuer or the Parent Guarantor with or merger by the Issuer or the Parent Guarantor into any other Person or any conveyance, transfer or lease of the properties and assets of the Issuer or the Parent Guarantor substantially as an entirety to any other Person in accordance with Section 801, the successor Person formed by such consolidation or amalgamation or into which the Issuer or the Parent Guarantor is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for,
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and may exercise every right and power of, the Issuer or the Parent Guarantor, as the case may be, under this Indenture with the same effect as if such successor Person had been named as the Issuer or the Parent Guarantor, as the case may be, herein, and in the event of any such transaction, the Issuer (which term shall for this purpose mean the applicable Person named as an “Issuer” in the first paragraph of this Indenture or any successor Person which shall theretofore become such in the manner described in this Section 802) or the Parent Guarantor (which term shall for this purpose mean the Person named as the “Parent Guarantor” in the first paragraph of this Indenture or any successor Person which shall theretofore become such in the manner described in this Section 802), as the case may be, except in the case of a lease, shall be discharged of all obligations and covenants under this Indenture and the Securities and the Guarantees, as the case may be, and may be dissolved and liquidated.
          In the event that a successor Person shall succeed to, and be substituted for, the Issuer (other than the Parent Guarantor) as provided in the immediately preceding paragraph, then such Person shall be deemed to have succeeded to, and to have been substituted for, the Issuer, all on the same terms and subject to the same conditions set forth in the immediately preceding paragraph, mutatis mutandis .
SECTION 803. Securities to Be Secured in Certain Events .
          If, upon any consolidation or amalgamation of the Issuer or the Parent Guarantor with or merger of the Issuer or the Parent Guarantor into any other Person, or upon any conveyance, lease or transfer of the properties and assets of the Issuer or the Parent Guarantor substantially as an entirety to any other Person, any Principal Assets would thereupon become subject to any Lien, then unless such Lien could be created pursuant to Section 1009 without equally and ratably securing the Securities, the Parent Guarantor shall, prior to or simultaneously with such consolidation, amalgamation, merger, conveyance, lease or transfer, secure the Securities (together with, at the Parent Guarantor’s option, any other obligations that are not subordinate in right of payment to the Securities) equally and ratably with (or prior to) any and all obligations which upon such consolidation, amalgamation, merger, conveyance, lease or transfer are to become secured by such Lien, or will cause the Securities to be so secured, in each case for so long as such obligations are so secured.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders .
          Without the consent of any Holders, the Issuer and the Parent Guarantor, when authorized by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
     (1) to evidence the succession of another Person to the Issuer or the Parent Guarantor and the assumption by any such successor of the covenants of the Issuer or the Parent Guarantor contained herein and in the Securities or the Guarantees and to make the changes to Sections 1005 and 1404 contemplated by Section 801(1); or
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     (2) to add to the covenants of the Issuer or the Parent Guarantor 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 being included solely for the benefit of such Series) or to surrender any right or power herein conferred upon the Issuer or the Parent Guarantor, as the case may be; or
     (3) to add any additional Events of Default (and if such Events of Default are to be for the benefit of less than all Series of Securities, stating that such Events of Default are being included solely for the benefit of such Series); or
     (4) to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become effective only when there is no Security Outstanding of any Series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or
     (5) to secure the Securities pursuant to the requirements of Section 803 or 1009 or otherwise; or
     (6) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 609(b); or
     (7) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture; provided such action under clause (B) shall not adversely affect the interests of the Holders of Securities of any Series (including, without limitation, their rights under any Guarantees) in any material respect; or
     (8) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any Series of Securities pursuant to Sections 401, 1402 or 1403; provided that any such action shall not adversely affect the interests of the Holders of Securities of such Series or any other Series of Securities (including, without limitation, their rights under any Guarantees) in any material respect; or
     (9) to add any additional Joint Obligor designated by BIBC pursuant to Section 1201.
SECTION 902. Supplemental Indentures with Consent of Holders .
          With the consent of the Holders of not less than a majority in principal amount of all Outstanding Securities of all Series affected by such supplemental indenture, by Act of said Holders delivered to the Issuer, the Parent Guarantor and the Trustee, the Issuer and the Parent Guarantor, when authorized by or pursuant to a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or
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changing in any manner or eliminating any of the provisions of this Indenture which affect such Series of Securities or of modifying in any manner the rights of the Holders of Securities of such Series under this Indenture; provided , however , neither the Issuer nor the Parent Guarantor shall be permitted to enter into an indenture or indentures supplemental hereto for the purpose of modifying or amending the terms of the Securities relating to the payment of the BIBC Settlement Date Payment Amounts without the consent of the applicable Counterparty or Counterparties; provided , further , that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security of such Series,
     (1) change the Stated Maturity of the principal of (or Make-Whole Amount, if any) or any installment of interest on any Security of such Series, or reduce the principal amount thereof (or Make-Whole Amount, if any) or the rate of interest, if any, thereon, or the Redemption Price thereof, or any amount payable under Section 1005, change any obligation of the Issuer or the Parent Guarantor to pay Additional Amounts (or other amounts) contemplated by Section 1005 (except as contemplated by Section 801(1) and permitted by Section 901(1)), or change any Place of Payment where, or the Currency in which, any Security of such Series or any Make-Whole Amount or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or
     (2) reduce the percentage in principal amount of the Outstanding Securities of such Series required for any such supplemental indenture, for any waiver of compliance with certain provisions of this Indenture which affect such Series or certain defaults applicable to such Series hereunder and their consequences provided for in Section 513 or 1010 of this Indenture, or reduce the requirements of Section 1604 for quorum or voting with respect to Securities of such Series, or
     (3) modify any of the provisions of this Section, Section 513 or Section 1010, except to increase any such percentage or to provide that certain other provisions of this Indenture which affect such Series cannot be modified or waived without the consent of the Holder of each Outstanding Security of such Series.
          Any such supplemental indenture adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, or modifying in any manner the rights of the Holders of Securities of such Series, shall not affect the rights under this Indenture of the Holders of Securities of any other Series.
          It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures .
          In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or
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permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures .
          Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 905. 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 Issuer or the Parent Guarantor shall so determine, new Securities of any Series and any Guarantees endorsed thereon so modified as to conform, in the opinion of the Trustee, the Issuer and the Parent Guarantor, to any such supplemental indenture may be prepared and executed by the Issuer and the Parent Guarantor and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such Series.
SECTION 906. Notice of Supplemental Indentures .
          Promptly after the execution by the Issuer, the Parent Guarantor and the Trustee of any supplemental indenture pursuant to the provisions of Section 902, the Issuer shall give notice thereof to the Holders of each Outstanding Security affected, in the manner provided for in Section 106, setting forth in general terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest .
          The Issuer covenants and agrees for the benefit of the Holders of each Series of Securities issued by the Issuer that it will duly and punctually pay the principal of (and Make-Whole Amount, if any) and interest, if any, on the Securities of that Series in accordance with the terms of the Securities of such Series and this Indenture.
SECTION 1002. Maintenance of Office or Agency .
          The Issuer 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 Issuer in respect of the Securities of that Series and this Indenture may be served. The Parent Guarantor will maintain an office or agency in The
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City of New York where notices and demands to or upon the Parent Guarantor in respect of the Securities of that Series and this Indenture may be served.
          The Issuer and the Parent Guarantor will give prompt written notice to the Trustee of the location, and any change in the location, of any such office or agency. If at any time the Issuer or the Parent Guarantor shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Issuer and the Parent Guarantor hereby appoints the same as its agents to receive such respective presentations, surrenders, notices and demands.
          The Issuer may also from time to time designate one or more other offices or agencies where the Securities of one or more Series may be presented or surrendered for any or all such purposes and may from time to time rescind any such designation; provided , however , that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency in accordance with the requirements set forth above for Securities of any Series for such purposes. Such Issuer 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. The Issuer hereby designates as a Place of Payment for each Series of Securities the office or agency of the Trustee in the Borough of Manhattan, The City of New York or, in the case of holders in Ontario, in Toronto, Ontario, Canada, and initially appoints the Trustee at its Corporate Trust Office as Paying Agent in such cities and as its agent to receive all such presentations, surrenders, notices and demands.
SECTION 1003. Money for Securities Payments to Be Held in Trust .
          If the Issuer or the Parent Guarantor shall at any time act as its own Paying Agent with respect to any Series of Securities and , it will, on or before each due date of the principal of (or Make-Whole Amount, if any) or interest, if any, on any of the Securities of that Series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in Dollars sufficient to pay the principal of (or Make-Whole Amount, if any) or interest, if any, on Securities of such Series so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
          Whenever the Issuer shall have one or more Paying Agents for any Series of Securities and, it will, prior to or on each due date of the principal of (or Make-Whole Amount, if any) or interest, if any, on any Securities of that Series, deposit with a Paying Agent a sum sufficient to pay the principal (or Make-Whole Amount, if any) or interest, if any, so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, Make-Whole Amount or interest, and (unless such Paying Agent is the Trustee) the Issuer will promptly notify the Trustee of its action or failure so to act.
          The Issuer will cause the bank through which payment of funds to the Paying Agent will be made to deliver to the Paying Agent by 10:00 a.m. (New York Time) two Business Days prior to the due date of such payment an irrevocable confirmation (by tested telex or authenticated Swift MT 100 Message) of its intention to make such payment.
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          The Issuer will cause each Paying Agent (other than the Trustee) for any Series of Securities 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) hold all sums held by it for the payment of the principal of (and Make-Whole Amount, if any) and interest, if any, on Securities of such Series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
     (2) give the Trustee notice of any default by the Issuer (or any other obligor upon the Securities of such Series) in the making of any payment of principal of (or Make-Whole Amount, if any) or interest, if any, on the Securities of such Series; and
     (3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
          The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Issuer or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which sums were held by the Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.
          Except as provided in the Securities of any Series, any money deposited with the Trustee or any Paying Agent, or then held by the Issuer or the Parent Guarantor, in trust for the payment of the principal of (or Make-Whole Amount, if any) or interest, if any, on any Security of any Series, and remaining unclaimed for two years after such principal, Make-Whole Amount or interest has become due and payable shall be paid to the Issuer or the Parent Guarantor, or (if then held by the Issuer or the Parent Guarantor) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Issuer or the Parent Guarantor, as the case may be, for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer or the Parent Guarantor, as the case may be, 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 written direction and at the expense of the Issuer cause to be published once, in an Authorized Newspaper, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Issuer or the Parent Guarantor, as the case may be.
SECTION 1004. Statement as to Compliance .
          The Issuer and the Parent Guarantor will deliver to the Trustee, within 120 days after the end of each fiscal year (which as of the date hereof ends on the 31 st day of December), a brief certificate from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of the Issuer’s or the Parent Guarantor’s compliance with all conditions and covenants under this Indenture and as to any default in such
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performance. For purposes of this Section 1004, such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture.
SECTION 1005. Additional Amounts .
          All payments made by or on behalf of the Issuer or the Parent Guarantor under or with respect to the Securities or any Guarantees 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) imposed or levied by or on behalf of any government in which jurisdiction the payor is engaged in business or resident for tax purposes or any state, province, municipality or territory thereof or by any authority or agency therein or thereof having power to tax (hereinafter “Taxes”), unless the Issuer or the Parent Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the interpretation or administration thereof by the relevant government authority or agency. If the Issuer or the Parent 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 the Guarantees, the Issuer or the Parent Guarantor, as the case may be, will pay to each Holder of such Securities (or to each Holder of the Securities on which such Guarantees are endorsed, as the case may be) 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 (and after deducting any Taxes on such Additional Amounts) will not be less than the amount such Holder would have received if such Taxes had not been withheld or deducted, except as described below. However, no Additional Amounts will be payable with respect to a payment made to a Holder (such Holder, an “Excluded Holder”) in respect of the beneficial owner thereof:
     (1) with which the Issuer or the Parent Guarantor, as the case may be, does not deal at arm’s length (for the purposes of the income tax laws of the jurisdiction imposing such taxes) at the time of the making of such payment;
     (2) which is subject to such Taxes by reason of the Holder being a resident, domiciliary or national of, engaged in business or maintaining a permanent establishment or other physical presence in or otherwise having some connection with the jurisdiction imposing such Taxes otherwise than by the mere holding of Securities or the receipt of payments thereunder;
     (3) which is subject to such Taxes by reason of the Holder’s failure to comply with any certification, identification, documentation or other reporting requirements if compliance is required by law, regulation, administrative practice or an applicable treaty as a precondition to exemption from, or a reduction in the rate of deduction or withholding of, such Taxes (provided that the Issuer or the Parent Guarantor shall give written notice to the Trustee and the Holders of the Securities then outstanding of any change in such requirements); or
     (4) which is a fiduciary or partnership or Person other than the sole beneficial owner of such payment to the extent that the Taxes would not have been imposed on such payment had such holder been the sole beneficial owner of such Securities.
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          The Issuer or the Parent Guarantor, as the case may be, will also:
     (i) make such withholding or deduction; and
     (ii) remit the full amount deducted or withheld to the relevant authority in accordance with applicable law.
          The Issuer or the Parent Guarantor, as the case may be, will furnish to the Holders of the Securities, within 60 days after the date the payment of any Taxes is due pursuant to applicable law, certified copies of tax receipts or other documents evidencing such payment by such person.
          The Issuer will and the Parent Guarantor will, jointly and severally, indemnify and hold harmless each Holder (other than an Excluded Holder) from and against and, upon written request, reimburse each such Holder for the amount (excluding any Additional Amounts that have previously been paid by the Issuer or the Parent Guarantor with respect thereto) of:
     (1) any Taxes so levied or imposed and paid by such Holder as a result of payments made under or with respect to the Securities or the Guarantees;
     (2) any liability (including penalties, interest and expenses) arising therefrom or with respect thereto; and
     (3) any Taxes imposed with respect to any reimbursement under clause (1) or (2) in this paragraph, but excluding any such Taxes on such Holder’s net income.
          At least five (5) days prior to each date on which any payment under or with respect to the Securities is due and payable, if the Issuer or the Parent Guarantor will be obligated to pay Additional Amounts with respect to such payment, the Issuer or the Parent Guarantor, as the case may be, will deliver to the Trustee an Officers’ Certificate stating the fact that such Additional Amounts will be payable and specifying the amounts so payable and will set forth such other information necessary to enable the Trustee to pay such Additional Amounts (upon receipt by the Trustee from the Issuer or Parent Guarantor, as the case may be, of such Additional Amounts) to Holders on the date on which such payment is due and payable.
          In any event, no Additional Amounts or indemnity amounts will be payable under the provisions set forth above in this Section 1005 in respect of any Security in excess of the Additional Amounts and the indemnity amounts which would be required if, at all relevant times, the Holder of such Security were a resident of the United States and entitled to the benefits of the income tax treaty, if any, between the United States and the jurisdiction in which the payor is resident.
          Wherever in this Indenture, the Securities or the Guarantees there is mentioned, in any context, the payment of principal (or Make-Whole Amount, if any), interest, if any, or any other amount payable under or with respect to a Security or Guarantee, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
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          The provisions of this Section 1005 shall survive any termination, defeasance, covenant defeasance or discharge of this Indenture or of any Securities and the repayment, redemption or other retirement of the Securities.
SECTION 1006. Payment of Taxes and Other Claims .
          The Issuer and the Parent Guarantor will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all material taxes, assessments and governmental charges levied or imposed upon the Issuer or the Parent Guarantor, as the case may be, or upon the income, profits or property of the Issuer or the Parent Guarantor, as the case may be, and (2) all material lawful claims for labor, materials and supplies which, if unpaid, might by law become a Lien upon any property of the Issuer or the Parent Guarantor; provided , however, that the Issuer or the Parent Guarantor shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, governmental charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings.
SECTION 1007. Maintenance of Properties .
          The Issuer and the Parent Guarantor will cause all its properties to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Issuer or the Parent Guarantor, as the case may be, may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times except to the extent that the failure to do so would not materially impair the operations of the Parent Guarantor and its Subsidiaries taken as a whole; provided , however , that nothing in this Section shall prevent or restrict the sale, abandonment or other disposition of any of such properties if such action is, in the judgment of the Issuer or the Parent Guarantor, as the case may be, desirable in the conduct of the business of the Issuer or the Parent Guarantor, as the case may be, and not disadvantageous in any material respect to the Holders.
SECTION 1008. Corporate Existence .
          Subject to Article Eight, the Issuer and the Parent Guarantor will do or cause to be done all things necessary to preserve and keep in full force and effect its existence (corporate or other) and the rights (charter and statutory) and franchises of the Issuer or the Parent Guarantor, as the case may be; provided , however , that the Issuer or the Parent Guarantor, as the case may be, shall not be required to preserve any such right or franchise if the Issuer or the Parent Guarantor, as the case may be, shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Issuer or the Parent Guarantor and its Subsidiaries as a whole, as the case may be.
SECTION 1009. Limitation on Liens .
          The Parent Guarantor will not, and will not permit any Restricted Subsidiary to, create, incur or assume any Lien (except for Permitted Liens) on any Principal Assets securing payment of Indebtedness of the Parent Guarantor or any of its Subsidiaries unless the Securities (together with, at the Parent Guarantor’s option, any other obligations that are not subordinate in
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right of payment to the Securities) are secured equally and ratably with (or prior to) any and all obligations secured or to be secured by any such Lien and for so long as such obligations are so secured.
          For greater certainty, the following shall not constitute Liens securing payment of Indebtedness:
     (a) all rights reserved to or vested in any Governmental Authority by the terms of any lease, license, franchise, grant or permit held by the Parent Guarantor or any Restricted Subsidiary, or by any statutory provision, to terminate any such lease, license, franchise, grant or permit, or to require annual or other periodic payments as a condition of the continuance thereof or to distrain against or to obtain a charge on any property or assets of the Parent Guarantor or any Restricted Subsidiary in the event of failure to make any such annual or other periodic payment;
     (b) any Lien upon any Principal Asset in favor of any party to a joint development or operating agreement or any similar Person paying all or part of the expenses of developing or conducting operations for the recovery, storage, treatment, transportation or sale of the mineral resources of the Principal Asset (or property or assets with which it is united) that secures the payment to such Person of the Parent Guarantor’s or any Restricted Subsidiary’s proportionate part of such development or operating expenses;
     (c) any acquisition by the Parent Guarantor or by any Restricted Subsidiary of any Principal Asset subject to any reservation or exception under the terms of which any vendor, lessor or assignor creates, reserves or excepts or has created, reserved or excepted an interest in precious metals or any other mineral or timber in place or the proceeds thereof; and
     (d) any conveyance or assignment whereby the Parent Guarantor or any Restricted Subsidiary conveys or assigns to any Person or Persons an interest in precious metals or any other mineral or timber in place or the proceeds thereof.
SECTION 1010. Waiver of Certain Covenants .
          The Issuer and the Parent Guarantor may, with respect to any Series of Securities, omit in any particular instance to comply with any term, provision or condition which affects such Series set forth in Section 803 or Sections 1006 to 1009, inclusive, if before the time for such compliance the Holders of at least a majority in principal amount of all Outstanding Securities of such Series, by Act of such Holders, waive such compliance in such instance 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 Issuer and the Parent Guarantor and the duties of the Trustee to Holders of Securities of such Series in respect of any such term, provision or condition shall remain in full force and effect.
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ARTICLE ELEVEN
OBLIGATION TRANSFER AMOUNTS
SECTION 1101. Obligation Transfer Amounts
          On each Settlement Date, in respect of each Series of Securities, there shall be due and payable from BIBC an amount of principal on such Series of Securities (“Obligation Transfer Amount”) equal to the product of (i) the amount of metric tones of copper (the “Settlement Date Quantity”) set forth adjacent to such Settlement Date (a) in the case of the Series A Barrick Notes, in the column entitled “Series A Settlement Date Quantity” in the table on Appendix B hereto and (b) in the case of the Series B Barrick Notes, in the column entitled “Series B Settlement Date Quantity” in the table on Appendix B hereto and (ii) the price per metric ton (the “Fixed Price”) set forth adjacent to such Settlement Date (a) in the case of the Series A Barrick Notes, in the column entitled “Series A Fixed Price” in the table on Appendix B hereto and (b) in the case of the Series B Barrick Notes, in the column entitled “Series B Fixed Price” in the table on Appendix B hereto. The obligation of BIBC to repay the Obligation Transfer Amount for each Series of Securities on each Settlement Date shall be satisfied in full by payment of an amount (the “BIBC Settlement Date Payment Amount”) equal to the product of (1) the Floating Price set forth in the notice given by BIBC to ABXFC pursuant to Section 1103 for such Settlement Date and (2) the Settlement Date Quantity for such Settlement Date for each Series of Securities.
          In the event of a partial payment by BIBC of the BIBC Settlement Date Payment Amount, the aggregate principal amount payable by BIBC under the applicable Series of Notes shall be reduced (subject to BIBC’s obligations as a co-obligor) by the excess, if any, of (A) the Obligation Transfer Amount over (B) the amount by which the BIBC Settlement Date Payment Amount exceeds the amount actually paid by BIBC in respect of such BIBC Settlement Date Payment Amount. Any amounts of principal due and payable by BIBC (pursuant to this Section 1101) under a particular Series of Notes which remain unpaid on termination of the Revolving Period, shall cease to be currently due and payable and shall become due and payable at Maturity (as defined without regard to this Section 1101) of such Series of Notes and BIBC shall have no further liability in respect of any unpaid BIBC Settlement Date Payment Amounts. An amount equal to the Obligation Transfer Amount on any Settlement Date shall be advanced by ABXFC to the applicable Joint Obligor on such Settlement Date in accordance with and subject to Section 1102 of this Indenture.
          In the event that BIBC makes a payment in respect of a BIBC Settlement Date Payment Amount for which the corresponding Settlement Date has not yet occurred (by reason of the proviso in the definition of the term Settlement Date), then ABFXC shall return such payment to BIBC.
SECTION 1102. ABXFC Payment Obligation
          On each Settlement Date, in respect of each Series of Securities, ABXFC (as the sole holder of such Series of Securities) shall be required (subject to the receipt of funds by ABXFC) to advance to the Joint Obligor for such Settlement Date an amount (the “ABXFC Settlement Date Payment Amount”) equal to the Obligation Transfer Amount for each such Settlement Date in respect of such Series of Securities.
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          The ABXFC Settlement Date Payment Amount for any Settlement Date will be advanced to the Joint Obligor for such Settlement Date only to the extent that (and at such times as) ABXFC receives (i) a payment in respect of the BIBC Settlement Date Payment Amount for such Settlement Date from BIBC in excess of any amount due to the Counterparties under the applicable Copper Swap Agreements in respect of such Settlement Date, and (ii) the amount (if any) payable by the Counterparties for such Settlement Date under the Copper Swap Agreements for the relevant Series of Securities. To the extent that any part of a BIBC Settlement Date Payment Amount for a Settlement Date and Series which is not paid in full by BIBC to ABXFC on such Settlement Date is, within the period commencing on such Settlement Date and ending 90 days after the giving of notice as referred to in Section 501(3) in respect of such partial payment, paid to ABXFC, ABXFC shall promptly thereafter advance an amount equal to such part to the Joint Obligor in respect of the ABXFC Settlement Date Payment Amount relating to such Settlement Date.
          Amounts advanced in respect of the ABXFC Settlement Date Payment Amount in respect of a Series of Securities to a Joint Obligor shall increase the principal amount payable by such Joint Obligor under such Series of Securities by such amount advanced in respect of the ABXFC Settlement Date Payment Amount, but will not affect the total principal amount of such Series of Securities outstanding immediately prior to such payment.
          BIBC will remain fully liable, as a co-obligor, for all amounts of principal and interest payable under such Securities by the applicable Joint Obligor.
          All interest payments made with respect to the Securities during the Revolving Period will be applied by ABXFC to pay interest on the ABXFC Notes.
SECTION 1103. BIBC’s Obligation to Notify ABXFC
          As soon as practicable on or prior to each Settlement Date, BIBC shall furnish to ABXFC written notice specifying the monthly arithmetic average of the Daily Official cash settlement prices of copper, as published by the London Metal Exchange, in respect of each commodity business day during the calendar month preceding a Settlement Date (the “Floating Price”) for such Settlement Date; provided that if such Daily Official cash settlement price is unavailable for any commodity business day during such calendar month, BIBC shall determine the Floating Price using such alternative prices as it shall determine in good faith acting in a commercially reasonable manner.
ARTICLE TWELVE
JOINT OBLIGORS
SECTION 1201. Designation of Joint Obligors
          At any time during the Revolving Period, BIBC may designate any of its Affiliates to act as a Joint Obligor for both Series of Securities in addition to the existing Joint Obligor or Joint Obligors, which designation shall be effective until a new additional Joint Obligor is designated by BIBC. Any such additional Joint Obligor shall be liable on the Securities solely in respect of the principal amount of Obligation Transfer Amounts advanced to such Joint Obligor on the Settlement Date(s) in respect of which it acts as Joint Obligor and any
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other amount payable thereon (provided, however, that BIBC will remain a co-obligor with respect to amounts payable under the Securities by any Joint Obligor). Any affiliate of BIBC designated by BIBC to act as Joint Obligor hereunder, shall execute a supplemental indenture in the form of Exhibit B hereto.
ARTICLE THIRTEEN
[INTENTIONALLY OMITTED]
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Option to Effect Defeasance or Covenant Defeasance.
          The provisions of this Article Fourteen shall apply to each Series of Securities, and the Issuer or the Parent Guarantor may, at its option after the Note Exchange Date, effect defeasance of the Securities of a Series under Section 1402, or covenant defeasance of a Series under Section 1403 in accordance with the terms of such Securities and in accordance with this Article; provided, however, that, the Issuer or the Parent Guarantor may effect defeasance or covenant defeasance only with respect to all of the Securities of such Series.
SECTION 1402. Defeasance and Discharge.
          Upon the exercise by the Issuer or the Parent Guarantor of the above option applicable to this Section with respect to any Securities of a Series, the Issuer and the Parent Guarantor shall each be deemed to have been discharged from its obligations with respect to such Outstanding Securities and on the date the conditions set forth in Section 1404 are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance means that the Issuer and the Parent Guarantor shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Securities and Guarantees, respectively, which shall thereafter be deemed to be “Outstanding” only for the purposes of Section 1405 and the other provisions of this Indenture referred to in (A), (B), (C) and (D) below, and to have satisfied all their other obligations under such Securities and Guarantees, respectively, and this Indenture insofar as such Securities and Guarantees are concerned (and the Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of such Outstanding Securities to receive, solely from the trust fund described in Section 1404 and as more fully set forth in such Section, payments in respect of the principal of (and Make-Whole Amount, if any) and interest, if any, on such Securities when such payments are due, (B) the Issuer’s, the Trustee’s and, if applicable, the Parent Guarantor’s obligations with respect to such Securities under Sections 113, 114, 306 (and any other applicable provisions of Article Three), 1002, 1003, 1005, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (D) this Article Fourteen. Subject to compliance with this Article Fourteen, the Issuer or the Parent Guarantor may exercise its option under this Section 1402 notwithstanding the prior exercise of the option under Section 1403 with respect to such Securities and Guarantees.
SECTION 1403. Covenant Defeasance .
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          Upon the exercise by the Issuer or the Parent Guarantor of the above option applicable to this Section with respect to any Securities of a Series, the Issuer and the Parent Guarantor shall be released from their obligations under Article Eight and Sections 1006 through 1009, in each case with respect to such Outstanding Securities and Guarantees, respectively, on and after the date the conditions set forth in Section 1404 are satisfied (hereinafter, “covenant defeasance”), and such Securities and Guarantees shall thereafter be deemed not to be “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities and Guarantees, the Issuer and the Parent Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 501(3) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Securities and and Guarantees shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance .
          The following shall be the conditions to application of either Section 1402 or Section 1403 to any Outstanding Securities of or within a Series:
     (1) The Issuer or the Parent Guarantor has deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 607 who shall agree to comply with the provisions of this Article Fourteen applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities (A) an amount in Dollars, or (B) Government Obligations applicable to such Securities, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of or Make-Whole Amount, if any, or interest, if any, or any other sums due under such Securities money in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (i) the principal of (and Make-Whole Amount, if any) and interest, if any, and any other sums due under such Outstanding Securities on the Stated Maturity (or Redemption Date, if applicable) of such principal (and Make-Whole Amount, if any) or installment of interest, if any, or any other sums and (ii) or analogous payments applicable to such Outstanding Securities on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and ; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Obligations to said payments with respect to such Securities. Before such a deposit, the Issuer may give to the Trustee, in accordance with Section 302 hereof, a notice of its election to redeem all or any portion of such Outstanding Securities at a future date in accordance with the terms of the Securities of such
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Series and Article Three hereof, which notice shall be irrevocable. Such irrevocable redemption notice, if given, shall be given effect in applying the foregoing.
     (2) In the case of an election under Section 1402, the Issuer or the Parent Guarantor shall have delivered to the Trustee an Opinion of Counsel in the United States stating that (x) the Issuer or the Parent Guarantor, as the case may be, has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of execution of this Indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such defeasance and will be subject to 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 defeasance had not occurred.
     (3) In the case of an election under Section 1403, the Issuer or the Parent Guarantor shall have delivered to the Trustee an Opinion of Counsel in the United States to the effect that the Holders of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance and will be subject to 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 covenant defeasance had not occurred.
     (4) The Parent Guarantor is not an “insolvent person” within the meaning of the Bankruptcy and Insolvency Act (Canada) and the Issuer is not an “insolvent person” under the relevant legislation in the jurisdiction of the Issuer, in each case, on the date of such deposit or at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
     (5) No Event of Default or event that, with the passing of time or the giving of notice, or both, shall constitute an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit or, insofar as paragraphs (6), (7) or (8) of Section 501 are concerned, at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
     (6) The Issuer or the Parent Guarantor has delivered to the Trustee an Opinion of Counsel to the effect that such deposit shall not cause the Trustee or the trust so created to be subject to the Investment Company Act of 1940, as amended.
     (7) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Issuer or the Parent Guarantor is a party or by which it is bound.
     (8) The Issuer or the Parent Guarantor shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
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precedent provided for relating to either the defeasance under Section 1402 or the covenant defeasance under Section 1403 (as the case may be) have been complied with.

SECTION 1405.	 	Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.	
          Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 1405, the “Trustee”) pursuant to Section 1404 in respect of such Outstanding 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 Paying Agent as the Trustee may determine (other than, with respect only to defeasance pursuant to Section 1402, the Issuer or the Parent Guarantor or any of their respective Affiliates), to the Holders of such Securities of all sums due and to become due thereon in respect of principal (and Make-Whole Amount, if any) and interest, if any, but such money need not be segregated from other funds except to the extent required by law.
          The Issuer and the Parent Guarantor, as the case may be, shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant to Section 1404 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities.
          Anything in this Article Fourteen to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer or the Parent Guarantor, as the case may be, from time to time upon request of the Issuer or the Parent Guarantor any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in Section 1404 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent defeasance or covenant defeasance, as applicable, in accordance with this Article.
SECTION 1406. Reinstatement .
          If the Trustee or any Paying Agent is unable to apply any money in accordance with Section 1405 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Issuer and the Parent Guarantor under this Indenture and such Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 1402 or 1403, as the case may be, until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 1405; provided , however , that if the Issuer makes any payment of principal of (or Make-Whole Amount, if any) or interest, if any, on any such Security following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money held by the Trustee or Paying Agent.
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ARTICLE FIFTEEN
GUARANTEE OF GUARANTEED SECURITIES
SECTION 1501. Guarantee .
          The Parent Guarantor hereby unconditionally and irrevocably guarantees to each Holder of a Security of each Series authenticated and delivered by the Trustee and to the Trustee on behalf of each such Holder, the due and punctual payment of the principal of, Make-Whole Amount, if any, and interest on such Security, and the due and punctual payment of Additional Amounts that may be payable with respect to such Security, 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 Issuer punctually to make any such payment of principal, Make-Whole Amount, if any, interest, or any Additional Amounts that may be payable with respect to any Security, the Parent 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 Issuer.
          The Parent Guarantor hereby agrees that this Guarantee is a guarantee of payment and not of collection and 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 Security or this Indenture, any failure to enforce the provisions of any Security or this Indenture, or any waiver, modification or indulgence granted to the Issuer with respect thereto or hereto, by the Holder of any Security or by the Trustee or by any other circumstance or defense 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 Parent Guarantor, increase the principal amount of any Security, or increase the interest rate thereon, or increase any Make-Whole Amount payable upon redemption thereof, or alter the Stated Maturity thereof. The Parent Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest or notice with respect to any Security or the indebtedness evidenced thereby or with respect to any Make-Whole Amount, if any, or Additional Amounts, if any, that may be payable with respect to such Security and all demands whatsoever, and covenants that its obligations under this Article Fifteen and the Guarantees will not be discharged except by payment in full of the principal of, Make-Whole Amount, if any, and interest on and any Additional Amounts that may be payable with respect to the Securities.
          The Parent Guarantor further agrees that, if any payment made by the Issuer under the Securities is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, under any applicable bankruptcy law, equitable cause or any other requirement of applicable law, then, to the extent of such amount required to be refunded, repaid or returned, the Parent Guarantor’s liability hereunder shall be and remain in full force and effect, as fully as if such payment or proceeds had never been made or received. If, prior to any of the foregoing, the Guarantees shall have been cancelled or surrendered, the Guarantees shall be reinstated in full force and effect, and
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such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of the Parent Guarantor in respect of the amount of such payment.
          The Guarantees shall be the direct, unsecured and unsubordinated obligation of the Parent Guarantor, and will rank pari passu with all other unsubordinated obligations of the Parent Guarantor. The Guarantees shall not be subordinated in right of payment to all existing and future deposits with the Issuer by its affiliates or third parties, if any.
          The Parent Guarantor shall be subrogated to all rights of the Holder of any Security and the Trustee against the Issuer in respect of any amounts paid to such Holder by the Parent Guarantor pursuant to the provisions of this Article Fifteen and its Guarantee of such Security; provided , however , that the Parent 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, Make-Whole Amount, if any, and interest on all Securities of the same Series issued under this Indenture and any Additional Amounts that may be payable with respect to such Securities shall have been paid in full.
          If any of the principal of, Make-Whole Amount, if any, interest on or Additional Amounts in respect of any Security is not recoverable from the Issuer for any reason (including any failure of such obligations to be legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms) the Parent Guarantor shall indemnify the Holders for such amounts and shall pay those amounts to the Holders on demand made by the Trustee. This applies whether or not the transaction relating to such obligations was void or illegal or has been subsequently avoided. A valid claim made under this indemnity, as it relates to a Guarantee, may only be made to the extent a corresponding claim under such Guarantee would have been valid and enforceable, but for such Guarantee being otherwise deemed invalid for any reason.
SECTION 1502. Execution and Delivery of Guarantees .
          The Guarantees to be endorsed on the Securities of each Series shall include the terms of the guarantees set forth in Section 1501 and any other terms that may be set forth in the form established pursuant to Section 1503 with respect to such Series. The Parent Guarantor hereby agrees to execute the Guarantees, in a form established pursuant to Section 1503, to be endorsed on each Security authenticated and delivered by a Trustee.
          The Guarantees shall be executed on behalf of the Parent Guarantor by its Chairman, its Chief Executive Officer, its President or a Vice President, together with any one of the Secretary, an Assistant Secretary, the Treasurer or Assistant Treasurer of the Parent Guarantor. The signature of any of these officers 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 officers of the Parent Guarantor shall bind the Parent Guarantor, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of the Securities on which such Guarantees are endorsed or did not hold such offices at the date of such Securities.
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          The delivery of any Security by a Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee endorsed thereon on behalf of the Parent Guarantor. The Parent Guarantor hereby agrees that its Guarantee set forth in Section 1501 shall remain in full force and effect notwithstanding any failure to endorse a Guarantee on any Guaranteed Security.
SECTION 1503. Form of Guarantee
          Guarantees to be endorsed on the Securities shall be in substantially the form set forth below:
GUARANTEE
OF
BARRICK GOLD CORPORATION
          For value received, Barrick Gold Corporation, a corporation incorporated under the laws of the Province of Ontario, having its principal executive offices at BCE Place, Canada Trust Tower, Suite 3700, 161 Bay Street, Toronto, Ontario, Canada M5J 2S1 (herein called the “Parent Guarantor”, which term includes any successor Person under the Indenture referred to in the Security upon which this Guarantee is endorsed), hereby 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, Make-Whole Amount, if any, and interest on such Security, the due and punctual payment of Additional Amounts that may be payable with respect to such Security, 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 the Issuer (as defined in such Indenture), punctually to make any such payment of principal, Make-Whole Amount, if any, interest, or any Additional Amounts that may be payable with respect to such Security or analogous payment, the Parent 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 Issuer.
          The Parent Guarantor hereby agrees that this Guarantee is a guarantee of payment and not of collection and 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 Issuer with respect thereto, by the Holder of such Security or by the Trustee or by 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 Parent Guarantor, increase the principal amount of such Security, or increase the interest rate thereon, or increase any Make-Whole Amount payable upon redemption thereof, or alter the Stated Maturity thereof. The Parent Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest or notice with respect to such Security or the indebtedness evidenced thereby or with respect to any Make-Whole Amount, if any, or
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Additional Amounts, if any, that may be payable with respect to such Security and all demands whatsoever, and covenants that its obligations under this Guarantee and Article Fifteen of the Indenture shall not be discharged except by payment in full of the principal of, Make-Whole Amount, if any, and interest on and any Additional Amounts that may be payable with respect to the Securities.
          The Parent Guarantor further agrees that, if any payment made by the Issuer under the Securities is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, under any applicable bankruptcy law, equitable cause or any other requirement of applicable law, then, to the extent of such amount required to be refunded, repaid or returned, the Parent Guarantor’s liability hereunder shall be and remain in full force and effect, as fully as if such payment or proceeds had never been made or received. If, prior to any of the foregoing, this Guarantee shall have been cancelled or surrendered, this Guarantee shall be reinstated in full force and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of the Parent Guarantor in respect of the amount of such payment.
          This Guarantee shall be the direct, unsecured and unsubordinated obligation of the Parent Guarantor, and will rank pari passu with all other unsubordinated obligations of the Parent Guarantor. This Guarantee shall not be subordinated in right of payment to all existing and future deposits with the Issuer by its affiliates or third parties, if any.
          The Parent Guarantor shall be subrogated to all rights of the Holder of such Security and the Trustee against the Issuer in respect of any amounts paid to such Holder by the Parent Guarantor pursuant to the provisions of this Guarantee; provided , however , that the Parent 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, Make-Whole Amount, 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.
          If any of the principal of, Make-Whole Amount, if any, interest on or Additional Amounts in respect of any Security is not recoverable from the Issuer for any reason (including any failure of such obligations to be legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms) the Parent Guarantor shall indemnify the Holders for such amounts and shall pay those amounts to the Holders on demand made by the Trustee. This applies whether or not the transaction relating to such obligations was void or illegal or has been subsequently avoided. A valid claim made under this indemnity may only be made to the extent a corresponding claim under this Guarantee would have been valid and enforceable, but for this Guarantee being otherwise deemed invalid for any reason.
          No reference herein to such Indenture and no provision of this Guarantee or of such Indenture shall alter or impair the guarantees of the Parent Guarantor, which are absolute and unconditional, of the due and punctual payment of the principal of, Make-Whole Amount, if any, and interest on, and any Additional Amounts that may be payable with respect to, or analogous payments with respect to, the Security upon which this Guarantee is endorsed.
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          This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication of such Security shall have been manually executed by or on behalf of the Trustee under such Indenture.
          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 the date on the face hereof.
 	 	 	 	 	 	 	
 	BARRICK GOLD CORPORATION	 	 	
 	 	 	 	 	 	 	
 	 	By	 	 	 	 	
 	 	 	 	 	
 	 	Name:	 	 	 	 	
 	 	Title:	 	 	 	 	
 	 	 	 	 	 	 	
 	 	By	 	 	 	 	
 	 	 	 	 	
 	 	Name:	 	 	 	 	
 	 	Title:	 	 	 	 	
          Reference is made to Article Fifteen for further provisions with respect to the Guarantees.
SECTION 1504. Notice to Trustee .
          The Parent Guarantor shall give prompt written notice to the Trustee of any fact known to the Parent Guarantor which prohibits the making of any payment to or by the Trustee in respect of the Guarantee pursuant to the provisions of this Article Fifteen.
SECTION 1505. This Article Not to Prevent Events of Default .
          The failure to make a payment on account of principal of, Make-Whole Amount, if any, or interest on the Securities by reason of any provision of this Article will not be construed as preventing the occurrence of an Event of Default.
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1601. Purposes for Which Meetings May Be Called .
          A meeting of Holders of Securities of such Series may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such Series.
SECTION 1602. Call, Notice and Place of Meetings .
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          (a) The Trustee may at any time call a meeting of Holders of Securities of any Series for any purpose specified in Section 1601, to be held at such time and at such place in The City of New York, as the Trustee shall determine. Notice of every meeting of Holders of Securities of any Series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided for in Section 106, not less than 21 nor more than 180 days prior to the date fixed for the meeting.
          (b) In case at any time the Issuer, pursuant to a Board Resolution, the Parent Guarantor or the Holders of at least 10% in principal amount of the Outstanding Securities of any Series shall have requested the Trustee to call a meeting of the Holders of Securities of such Series for any purpose specified in Section 1601, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Issuer, the Parent Guarantor or the Holders of Securities of such Series in the amount above specified, as the case may be, may determine the time and the place in The City of New York or in Toronto, Ontario, Canada for such meeting and may call such meeting for such purposes by giving notice thereof as provided in paragraph (a) of this Section.
SECTION 1603. Persons Entitled to Vote at Meetings .
          To be entitled to vote at any meeting of Holders of Securities of any Series, a Person shall be (1) a Holder of one or more Outstanding Securities of such Series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such Series by such Holder of Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any Series shall be the Person entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Issuer and the Parent Guarantor and their respective counsel.
SECTION 1604. Quorum; Action .
          The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a Series shall constitute a quorum for a meeting of Holders of Securities of such Series; provided , however , that, if any action is to be taken at such meeting with respect to a consent or waiver which this Indenture expressly provides may be given by the Holders of not less than a specified percentage in principal amount of the Outstanding Securities of a Series, the Persons entitled to vote such specified percentage in principal amount of the Outstanding Securities of such Series shall constitute a quorum. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such Series, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 1602(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of any
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adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Securities of such Series which shall constitute a quorum.
          Subject to the foregoing, at the reconvening of any meeting adjourned for lack of a quorum the Persons entitled to vote 25% in principal amount of the Outstanding Securities at the time shall constitute a quorum for the taking of any action set forth in the notice of the original meeting.
          Except as limited by the proviso to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the affirmative vote of the Holders of not less than a majority in principal amount of the Outstanding Securities of such Series; provided , however , that, except as limited by the proviso to Section 902, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Securities of a Series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of not less than such specified percentage in principal amount of the Outstanding Securities of such Series.
          Any resolution passed or decision taken at any meeting of Holders of Securities of any Series duly held in accordance with this Section shall be binding on all the Holders of Securities of such Series, whether or not present or represented at the meeting.
          Notwithstanding the foregoing provisions of this Section 1604, if any action is to be taken at a meeting of Holders of Securities of any Series with respect to any request, demand, authorization, direction, notice, consent, waiver or other action that this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage in principal amount of all Outstanding Securities affected thereby, or of the Holders of such Series and one or more additional Series:
     (i) there shall be no minimum quorum requirement for such meeting; and
     (ii) the principal amount of the Outstanding Securities of such Series that vote in favor of such request, demand, authorization, direction, notice, consent, waiver or other action shall be taken into account in determining whether such request, demand, authorization, direction, notice, consent, waiver or other action has been made, given or taken under this Indenture.
SECTION 1605. Determination of Voting Rights; Conduct and Adjournment of Meetings .
          (a) Notwithstanding any provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of a Series in regard to proof of the holding of Securities of such Series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as its shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the
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manner specified in Section 104 and the appointment of any proxy shall be proved in the manner specified in Section 104. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 104 or other proof.
          (b) The Trustee shall, by an instrument in writing appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Issuer, the Parent Guarantor or by Holders of Securities as provided in Section 1602(b), in which case the Issuer, the Parent Guarantor or the Holders of Securities of the Series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such Series represented at the meeting.
          (c) At any meeting each Holder of a Security of such Series or proxy shall be entitled to one vote for each $1,000 principal amount of Outstanding Securities of such Series held or represented by him (determined as specified in the definition of “Outstanding” in Section 101); provided , however , that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such Series or proxy.
          (d) Any meeting of Holders of Securities of any Series duly called pursuant to Section 1602 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such Series represented at the meeting; and the meeting may be held as so adjourned without further notice.
SECTION 1606. Counting Votes and Recording Action of Meetings .
          The vote upon any resolution submitted to any meeting of Holders of Securities of any Series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such Series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such Series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities of any Series shall be prepared by the Secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 1602 and, if applicable, Section 1604. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Issuer, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
*     *     *     *     *
 79 

 

          This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Indenture.
          IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the day and year first above written.
 	 	 	 	 	 	 	
 	 	BARRICK GOLD CORPORATION,
as Parent Guarantor	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	/s/ Sybil Veenman	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name: Sybil Veenman	 	 	
 	 	 	 	Title:  Vice President, Assistant General Counsel and Secretary	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	/s/ Ammar Al-Joundi	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name: Ammar Al-Joundi	 	 	
 	 	 	 	Title:  Senior Vice President, Finance	 	 	
 	 	 	 	 	 	 	
 	 	BARRICK INTERNATIONAL BANK CORP.,
as Issuer	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	/s/ Ammar Al-Joundi	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name: Ammar Al-Joundi	 	 	
 	 	 	 	Title:  Director	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	/s/ Stephen Robin Galbraith	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name: Stephen Robin Galbraith	 	 	
 	 	 	 	Title:  Director	 	 	
 	 	 	 	 	 	 	
 	 	BARRICK (HMC) MINING COMPANY
as Joint Obligor	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	/s/ Sybil Veenman	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name: Sybil Veenman	 	 	
 	 	 	 	Title:  Secretary	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	/s/ Ammar Al-Joundi	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name: Ammar Al-Joundi	 	 	
 	 	 	 	Title: Vice President and Treasurer	 	 	

 

 	 	 	 	 	 	 	
 	 	ABX FINANCING COMPANY
(with respect to section 1102 only)	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	/s/ Karen Cameron	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name: Karen Cameron	 	 	
 	 	 	 	Title:	 	 	
 	 	 	 	 	 	 	
 	 	THE BANK OF NEW YORK,
as Trustee	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	/s/ Denise S. Moore	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name: Denise S. Moore	 	 	
 	 	 	 	Title: Assistant Vice President	 	 	

 

EXHIBIT A
FORM OF SECURITY
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF TRANSFER OF THIS NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE PARENT GUARANTOR OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (2) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST [CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF] RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS NOTE TO THE TRUSTEE. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION”, “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
* [ UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,

*	 	Include if Securities are to be issued in global form following the Note Exchange Date. At the time of this writing, DTC will not accept global securities with an aggregate principal amount in excess of $500,000,000. If the aggregate principal amount of the offering exceeds this amount, use more than one Global Note. If a Global Note is issued after the period specified in Rule 144(k) of the Securities Act, the Restricted Securities Legend should be removed.	
 A-3 

 

HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 204 OF THE INDENTURE. ]
BARRICK INTERNATIONAL BANK CORP.
[5.75] [6.35]% [Series A] [Series B] Barrick Copper Note due [2016] [2036]
No.                            $                     
CUSIP:
          BARRICK INTERNATIONAL BANK CORP., a corporation incorporated under the laws of Barbados, for value received, hereby promises to pay to [ABX Financing Company] [Cede & Co.]*, or registered assigns, the principal sum of $                                                                                                       (                                                                                                           DOLLARS) on [date and year], at the office or agency of the Issuer referred to below, and to pay interest thereon semi-annually on April 15 and October 15 in each year, commencing on April 15, 2007, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of [5.75] [6.35]% per annum, until the principal hereof is paid or duly provided for, and (to the extent lawful) to pay on demand interest on any overdue principal, Make-Whole Amount, if any, or interest at the rate borne by this Security from the date on which such overdue principal, Make-Whole Amount, if any, or interest becomes payable to the date payment of such principal, Make-Whole Amount, if any, or interest has been made or duly provided for (provided that no amount of principal, interest or Make-Whole Amount, if any, shall be required to be paid by it in the event that such amount is paid by Barrick (HMC) Mining Company or another Joint Obligor). Barrick (HMC) Mining Company, a corporation incorporated under the State of Delaware and each other Joint Obligor designated as such pursuant to Section 1201 of the Indenture, for value received, promises to pay to such person, in such manner, and on such dates as provided in the immediately preceding sentence, the amount of principal, Make-Whole Amount, if any, or interest pursuant to Section 1102 of the Indenture and the third paragraph of the reverse of this Security. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more predecessor Securities) is registered at the close of business on the regular record date for such interest, which shall be the April 1 or the October 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date, and such Defaulted Interest, and (to the extent lawful) interest on such Defaulted Interest at the rate borne by the Securities of this Series, may 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 may 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
 A-4 

 

more fully provided in said Indenture. 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 duly executed by the Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.
 A-5 

 

          IN WITNESS WHEREOF, each of Barrick International Bank Corp. and Barrick (HMC) Mining Company has caused this instrument to be duly executed.
 	 	 	 	 	 	 	
 	 	BARRICK INTERNATIONAL BANK CORP.	 	 	
 	 	 	 	 	 	 	
 	 	By	 	 	 	 	
 	 	 	 	 	 	 	
 	 	By	 	 	 	 	
 	 	 	 	 	 	 	
 	 	BARRICK (HMC) MINING COMPANY	 	 	
 	 	 	 	 	 	 	
 	 	By	 	 	 	 	
 	 	 	 	 	 	 	
 	 	By	 	 	 	 	
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
          This is one of the Securities of the Series designated therein referred to in the within-mentioned Indenture.
 	 	 	 	 	 	 	
 	 	THE BANK OF NEW YORK,	 	 	
 	 	     as Trustee	 	 	
 		
 	 	By	 	 	 	 	
 	 	 	 	 
Authorized Officer	 	 	
 A-6 

 

GUARANTEE OF BARRICK GOLD CORPORATION
          For value received, Barrick Gold Corporation, a corporation incorporated under the laws of the Province of Ontario, having its principal executive offices at BCE Place, Canada Trust Tower, Suite 3700, 161 Bay Street, Toronto, Ontario, Canada M5J 2S1 (herein called the “Parent Guarantor”, which term includes any successor Person under the Indenture referred to in the Security upon which this Guarantee is endorsed), hereby 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, Make-Whole Amount, if any, and interest on such Security, the due and punctual payment of Additional Amounts that may be payable with respect to such Security, 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 the Issuer (as defined in such Indenture), punctually to make any such payment of principal, Make-Whole Amount, if any, interest, or any Additional Amounts that may be payable with respect to such Security or analogous payment, the Parent 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 Issuer.
          The Parent Guarantor hereby agrees that this Guarantee is a guarantee of payment and not of collection and 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 Issuer with respect thereto, by the Holder of such Security or by the Trustee or by 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 Parent Guarantor, increase the principal amount of such Security, or increase the interest rate thereon, or increase any Make-Whole Amount payable upon redemption thereof, or alter the Stated Maturity thereof. The Parent Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest or notice with respect to such Security or the indebtedness evidenced thereby or with respect to any Make-Whole Amount, if any, or Additional Amounts, if any, that may be payable with respect to such Security and all demands whatsoever, and covenants that its obligations under this Guarantee and Article Fifteen of the Indenture shall not be discharged except by payment in full of the principal of, Make-Whole Amount, if any, and interest on and any Additional Amounts that may be payable with respect to the Securities.
          The Parent Guarantor further agrees that, if any payment made by the Issuer under the Securities is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, under any applicable bankruptcy law, equitable cause or any other requirement of applicable law, then, to the extent of such amount required to be refunded, repaid or returned, the Parent Guarantor’s liability
 A-7 

 

hereunder shall be and remain in full force and effect, as fully as if such payment or proceeds had never been made or received. If, prior to any of the foregoing, this Guarantee shall have been cancelled or surrendered, this Guarantee shall be reinstated in full force and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of the Parent Guarantor in respect of the amount of such payment.
          This Guarantee shall be the direct, unsecured and unsubordinated obligation of the Parent Guarantor, and will rank pari passu with all other unsubordinated obligations of the Parent Guarantor. This Guarantee shall not be subordinated in right of payment to all existing and future deposits with the Issuer by its affiliates or third parties, if any.
          The Parent Guarantor shall be subrogated to all rights of the Holder of such Security and the Trustee against the Issuer in respect of any amounts paid to such Holder by the Parent Guarantor pursuant to the provisions of this Guarantee; provided , however , that the Parent 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, Make-Whole Amount, 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.
          If any of the principal of, Make-Whole Amount, if any, interest on or Additional Amounts in respect of any Security is not recoverable from the Issuer for any reason (including any failure of such obligations to be legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms) the Parent Guarantor shall indemnify the Holders for such amounts and shall pay those amounts to the Holders on demand made by the Trustee. This applies whether or not the transaction relating to such obligations was void or illegal or has been subsequently avoided. A valid claim made under this indemnity may only be made to the extent a corresponding claim under this Guarantee would have been valid and enforceable, but for this Guarantee being otherwise deemed invalid for any reason.
          No reference herein to such Indenture and no provision of this Guarantee or of such Indenture shall alter or impair the guarantees of the Parent Guarantor, which are absolute and unconditional, of the due and punctual payment of the principal of, Make-Whole Amount, if any, and interest on, and any Additional Amounts that may be payable with respect to, 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 of such Security shall have been manually executed by or on behalf of the Trustee under such Indenture.
          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 the date on the face hereof.
 A-8 

 

 	 	 	 	 	 	 	
 	 	BARRICK GOLD CORPORATION	 	 	
 		
 	 	By	 	 	 	 	
 	 	Name:	 	 	 	 	
 	 	Title:	 	 	 	 	
 	 	 	 	 	 	 	
 	 	By	 	 	 	 	
 	 	Name:	 	 	 	 	
 	 	Title:	 	 	 	 	
 A-9 

 

[Form of Reverse]
          This Security is one of a duly authorized issue of securities of the Issuer (as defined in the Indenture) designated as its [[5.75% Series A Barrick Copper Notes due 2016] [6.35% Series B Barrick Copper Notes due 2036] (herein called the “Securities”), limited (except as otherwise provided in the Indenture referred to below) in aggregate principal amount to $[       ,000,000], which may be issued under an indenture (herein called the “Indenture”) dated as of October 12, 2006 among Barrick Gold Corporation, Barrick International Bank Corp., Barrick (HMC) Mining Company, ABX Financing Company (as to certain provisions only) and The Bank of New York, as trustee (herein called the “Trustee”, which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Parent Guarantor, the Issuer, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. [This Security is a Global Note representing $[       ,       ,000] aggregate principal amount of the Securities of this Series.]***
          Payment of the principal of (and the Make-Whole Amount, if any,) and interest on this Security will be made at the office or agency of the Issuer maintained for that purpose in the Borough of Manhattan, The City of New York in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that payment of interest may be made at the option of the Issuer (i) by check mailed to the address of the Person entitled thereto as such address shall appear on the Security Register or (ii) by wire transfer to an account maintained in the United States by the Person entitled to such payment as specified in the Security Register. Notwithstanding the foregoing, payments of principal, Make-Whole Amount, if any, and interest on a Global Note registered in the name of a Depositary or its nominee will be made by wire transfer of immediately available funds. Principal paid in relation to any Security of this Series at Maturity shall be paid to the Holder of such Security only upon presentation and surrender of such Security to such office or agency referred to above.
          With respect to any amount payable on this Series of Securities, each Joint Obligor shall be obligated to pay such amount multiplied by such Joint Obligor’s Joint Obligor Fraction (except as specified in any Notice of Redemption). “Joint Obligor Fraction” means, as of a date of determination, a fraction (i) the numerator of which shall be equal to the Joint Obligor Amount for this Series of Securities as of such date and (ii) the denominator of which shall be equal to the aggregate outstanding principal amount of this Series of Securities as of such date (in each case, determined before giving effect to any payment to be made on such date). “Joint Obligor Amount” means, as of a date of determination, the total sum in respect of the Obligation Transfer Amount for this Series of Securities advanced to such Joint Obligor pursuant to Article Eleven of the Indenture prior to such date minus any principal amount of this Series of Securities that such Joint Obligor was obligated to pay but was redeemed prior to such date.
          The Issuer and the Parent Guarantor will pay to the Holder of this Security such Additional Amounts and other amounts as may be payable under Section 1005 of the Indenture. Whenever in this Security there is mentioned, in any context, the payment of principal (or Make-Whole Amount, if any), interest or any other amount payable under or with respect to this Security, such mention

***	 	Include in a Global Note.	
 A-10 

 

shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof.
          The Securities are subject to redemption as set forth in Article 3 of the Indenture.
          In the case of any redemption of Securities of this Series, interest installments whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more predecessor Securities, of record at the close of business on the relevant record dates according to their terms. Securities of this Series (or portions thereof) for whose redemption payment is made or duly provided for in accordance with the Indenture shall cease to bear interest from and after the Redemption Date.
          In the event of redemption of this Security in part only, a new Security or Securities of this Series for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.
          If an Event of Default shall occur and be continuing, the principal of and accrued but unpaid interest on all the Securities may be declared due and payable in the manner and with the effect provided in the Indenture.
          The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Issuer and the Parent Guarantor on this Security and (b) certain restrictive covenants and the related Defaults and Events of Default applicable to the Securities of this Series, upon compliance by the Issuer and the Parent Guarantor, with certain conditions set forth therein, which provisions apply to this Security.
          The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer, the Parent Guarantor and the rights of the Holders under the Indenture at any time by the Issuer, the Parent Guarantor and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities at the time Outstanding of all Series affected by such amendment or modification. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities of this Series at the time Outstanding, on behalf of the Holders of all the Securities of this Series, to waive compliance by the Issuer and the Parent Guarantor with certain provisions of the Indenture and also contains provisions permitting the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of all Series with respect to which a Default shall have occurred and shall be continuing, on behalf of the Holders of all Outstanding Securities of such affected Series, to waive certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of 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.
          No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Issuer and the Parent Guarantor, which is absolute and unconditional, to pay the principal of (and Make-Whole Amount, if any, on) and interest on this Security at the times, place, and rate, and in the coin or currency, herein prescribed.
 A-11 

 

          As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable on the Security Register of the Issuer, upon surrender of this Security for registration of transfer at the office or agency of the Issuer maintained for such purpose in the Borough of Manhattan, The City of New York and Toronto, Ontario duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this Series, 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 $100,000 and any $1,000 integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Securities of this Series are exchangeable for a like aggregate principal amount of Securities of this Series of a different authorized denomination, as requested by the Holder surrendering the same.
          No service charge shall be made for any registration of transfer or exchange of Securities of this Series, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
          Prior to the time of due presentment of this Security for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security is overdue, and neither the Issuer, the Trustee nor any agent shall be affected by notice to the contrary.
          Interest on this Security shall be computed on the basis of a 360-day year of twelve 30-day months. For the purposes of disclosure under the Interest Act (Canada), the yearly rate of interest which is equivalent to the rate payable hereunder is the rate payable hereunder multiplied by the actual number of days in the year divided by 360.
          [All Global Notes will be exchanged by the Issuer for Definitive Notes if the Issuer delivers to the Trustee notice from the Depositary that the Depositary is unwilling or unable to continue to act as Depositary for the Global Notes and the Issuer thereupon fails to appoint a successor Depositary within 90 days. Upon the occurrence of such event, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee in writing.]**
          The Indenture and this Security shall be governed by and construed in accordance with the laws of the State of New York.
          All references herein to “Dollars” or “$” means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time should be legal tender for the payment of public and private debts, and all terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

**	 	Include for global security.	
 A-12 

 

ASSIGNMENT FORM *
 	 	 	
To assign this Security, fill in the form below:	 	 	
I or we assign and transfer this Security to	 	 	
 	 	 	
(INSERT ASSIGNEE’S SOC. SEC., SOC. INS. OR TAX ID NO.)	
(Print or type assignee’s name, address and zip or postal code)
and irrevocably appoint                                                                                                                                                     agent
to transfer this Security on the books of the [Guarantor] [Subsidiary Issuer]. The agent may substitute another to act for him.
 	 	 	 	 	 	 	 	 	 	 	
Dated:	 	 	 	 	 	Your Signature:	 	 	 	 	
 	 	 	 	 	 	 	 	 
     (Sign exactly as name appears on the other side of this Security)	 	 	
 	 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	Signature Guarantee:	 	 	 	 	
 	 	 	 	 	 	 	 	 
(Signature must be guaranteed by a commercial bank or trust company, by a member or members’ organization of The New York Stock Exchange or by another eligible guarantor institution as defined in Rule 17Ad-15 under the Securities Exchange Act of 1934)	 	  	

*	 	Omit if a global security	
 A-13 

 

EXHIBIT B
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT JOINT OBLIGORS]
          SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of                      , 200       , among                      (the “New Joint Obligor”), BARRICK INTERNATIONAL BANK CORP., a corporation duly organized and existing under the laws of Barbados (the “BIBC”), BARRICK (HMC) MINING COMPANY, a corporation duly organized and existing under the laws of the state of Delaware (“BMC”), ABX FINANCING COMPANY (as to certain provisions only), a Cayman Islands exempted company incorporated with limited liability (“ABXFC”), BARRICK GOLD CORPORATION, in its capacity as Parent Guarantor (the “Parent Guarantor”) and The Bank of New York, as trustee (the “Trustee”).
W I T N E S S E T H
          WHEREAS, the BIBC, BMC, ABXFC, and the Parent Guarantor have heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified, the “Indenture”), dated as of October 12, 2006 providing for the issuance of $400,000,000 aggregate principal amount of 5.75% Series A Barrick Copper Notes due 2016 (the “Series A Barrick Notes”) and $600,000,000 aggregate principal amount of 6.35% Series B Barrick Copper Notes due 2036 (the “Series B Barrick Notes,” and together with the Series A Barrick Notes, the “Securities”);
          WHEREAS, Section 1201 of the Indenture provides that under certain circumstances the New Joint Obligor shall execute and deliver to the Trustee a supplemental indenture pursuant to which the New Joint Obligor shall be liable on the Securities solely in respect of the principal amount of Obligation Transfer Amounts advanced to the New Joint Obligor on the Settlement Date(s) in respect of which it acts as Joint Obligor and any other amount payable thereon; and
          WHEREAS, pursuant to Section 1201 of the Indenture, the Trustee, BIBC, BMC, ABXFC, and the Parent Guarantor are authorized to execute and deliver this Supplemental Indenture.
          NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Joint Obligor, BIBC, BMC, ABXFC, the Parent Guarantor and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
          1. DEFINED TERMS. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
          2. AGREEMENT TO ACT AS A JOINT OBLIGOR. The New Joint Obligor hereby agrees to be liable on the Securities solely in respect of the principal amount of Obligation Transfer Amounts advanced to the New Joint Obligor on the Settlement Date(s) in respect of which it acts as Joint Obligor and any other amount payable thereon and to be bound
 B-1 

 

by all other applicable provisions of the Indenture and the Notes and to perform all of the obligations and agreements of a Joint Obligor under the Indenture.
          3. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager, officer, employee, incorporator, stockholder or member of BIBC, BMC, ABXFC, any other Joint Obligor or the Parent Guarantor, will have any liability for any obligations of BIBC, BMC, ABXFC, any other Joint Obligor or the Parent Guarantor under the Securities, the Indenture, the Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting the Securities waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Securities. The waiver may not be effective to waive liabilities under the federal securities laws.
          4. NOTICES. All notices or other communications to the New Joint Obligor shall be given as provided in Section 105 of the Indenture.
          5. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES PART OF INDENTURE. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder heretofore or hereafter authenticated and delivered shall be bound hereby.
          6. GOVERNING LAW. THE INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
          7. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
          8. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
          9. TRUSTEE MAKES NO REPRESENTATION. The recitals contained herein shall be taken as the statements of the Issuer and the Parent Guarantor, and the Trustee shall not assume any responsibility for their correctness. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.
 B-2 

 

          IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
Dated:                       , 20      
 	 	 	 	 	 	 	
 	 	[NEW JOINT OBLIGOR]	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 
Name:	 	 	
 	 	 	 	Title:	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 
Name:	 	 	
 	 	 	 	Title:	 	 	
 		
 	 	BARRICK GOLD CORPORATION,	 	 	
 	 	as Parent Guarantor	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 
Name:	 	 	
 	 	 	 	Title:	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name:	 	 	
 	 	 	 	Title:	 	 	
 	 	 	 	 	 	 	
 	 	BARRICK INTERNATIONAL BANK CORP.,	 	 	
 	 	as Issuer	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 
Name:	 	 	
 	 	 	 	Title:	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 
Name:	 	 	
 	 	 	 	Title:	 	 	
 B-3 

 

 	 	 	 	 	 	 	
 	 	BARRICK (HMC) MINING COMPANY	 	 	
 	 	as Joint Obligor	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 
Name:	 	 	
 	 	 	 	Title:	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Name:	 	 	
 	 	 	 	Title:	 	 	
 	 	 	 	 	 	 	
 	 	ABX FINANCING COMPANY	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 
Name:	 	 	
 	 	 	 	Title:	 	 	
 	 	 	 	 	 	 	
 	 	THE BANK OF NEW YORK	 	 	
 	 	as Trustee	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 
Authorized Signatory	 	 	
 B-4 

 

APPENDIX A
COPPER SWAP AGREEMENTS
          The Trustee has no responsibility and shall incur no liability on account of any the Copper Swap Agreements attached hereto.
Appendix A-1

 

APPENDIX B
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	Series A	 	 	 	 	 	Series B	 	 	
 	 	Settlement	 	Series A	 	Settlement	 	Series B	
Settlement Date*	 	Date Quantity	 	Fixed Price	 	Date Quantity	 	Fixed Price	
 	
16-Oct-06	 	 	1787.5	 	 	 	6800	 	 	 	2681.25	 	 	 	6800	 	
31-Oct-06	 	 	1818.53	 	 	 	6809.35	 	 	 	2727.79	 	 	 	6809.35	 	
30-Nov-06	 	 	1787.5	 	 	 	6800	 	 	 	2681.25	 	 	 	6800	 	
31-Dec-06	 	 	1787.5	 	 	 	6800	 	 	 	2681.25	 	 	 	6800	 	
31-Jan-07	 	 	1940	 	 	 	6800	 	 	 	2910	 	 	 	6800	 	
28-Feb-07	 	 	1940	 	 	 	6800	 	 	 	2910	 	 	 	6800	 	
31-Mar-07	 	 	1940	 	 	 	6800	 	 	 	2910	 	 	 	6800	 	
30-Apr-07	 	 	1940	 	 	 	6800	 	 	 	2910	 	 	 	6800	 	
31-May-07	 	 	1940	 	 	 	6800	 	 	 	2910	 	 	 	6800	 	
30-Jun-07	 	 	1940	 	 	 	6800	 	 	 	2910	 	 	 	6800	 	
31-Jul-07	 	 	1940	 	 	 	6800	 	 	 	2910	 	 	 	6800	 	
31-Aug-07	 	 	1940	 	 	 	6800	 	 	 	2910	 	 	 	6800	 	
30-Sep-07	 	 	1940	 	 	 	6800	 	 	 	2910	 	 	 	6800	 	
31-Oct-07	 	 	1940	 	 	 	6800	 	 	 	2910	 	 	 	6800	 	
30-Nov-07	 	 	1940	 	 	 	6800	 	 	 	2910	 	 	 	6800	 	
31-Dec-07	 	 	1940	 	 	 	6800	 	 	 	2910	 	 	 	6800	 	
31-Jan-08	 	 	1560	 	 	 	6800	 	 	 	2340	 	 	 	6800	 	
29-Feb-08	 	 	1560	 	 	 	6800	 	 	 	2340	 	 	 	6800	 	
31-Mar-08	 	 	1560	 	 	 	6800	 	 	 	2340	 	 	 	6800	 	
30-Apr-08	 	 	1560	 	 	 	6800	 	 	 	2340	 	 	 	6800	 	
31-May-08	 	 	1560	 	 	 	6800	 	 	 	2340	 	 	 	6800	 	
30-Jun-08	 	 	1560	 	 	 	6800	 	 	 	2340	 	 	 	6800	 	
31-Jul-08	 	 	1560	 	 	 	6800	 	 	 	2340	 	 	 	6800	 	
31-Aug-08	 	 	1560	 	 	 	6800	 	 	 	2340	 	 	 	6800	 	
30-Sep-08	 	 	1560	 	 	 	6800	 	 	 	2340	 	 	 	6800	 	
31-Oct-08	 	 	1560	 	 	 	6800	 	 	 	2340	 	 	 	6800	 	
30-Nov-08	 	 	1560	 	 	 	6800	 	 	 	2340	 	 	 	6800	 	
31-Dec-08	 	 	1560	 	 	 	6800	 	 	 	2340	 	 	 	6800	 	
31-Jan-09	 	 	1205	 	 	 	6800	 	 	 	1807.5	 	 	 	6800	 	
28-Feb-09	 	 	1205	 	 	 	6800	 	 	 	1807.5	 	 	 	6800	 	
31-Mar-09	 	 	1205	 	 	 	6800	 	 	 	1807.5	 	 	 	6800	 	
30-Apr-09	 	 	1205	 	 	 	6800	 	 	 	1807.5	 	 	 	6800	 	
31-May-09	 	 	1205	 	 	 	6800	 	 	 	1807.5	 	 	 	6800	 	
30-Jun-09	 	 	1205	 	 	 	6800	 	 	 	1807.5	 	 	 	6800	 	
31-Jul-09	 	 	1205	 	 	 	6800	 	 	 	1807.5	 	 	 	6800	 	
31-Aug-09	 	 	1205	 	 	 	6800	 	 	 	1807.5	 	 	 	6800	 	

*	 	Actual Settlement Dates are two Business Days after the dates set forth in this Column (other than October 16, 2006, which is a Settlement Date).	
Appendix B-1

 

Exhibit 99.3
PURCHASE AGREEMENT
     This Purchase Agreement (this “Agreement”) is made and entered into as of the 21 st day of February, 2008, by and between Barrick Gold Finance, Inc., a Delaware corporation (“Purchaser”), and Kennecott Explorations (Australia) Ltd., a Delaware corporation (“Seller”).
RECITALS :
     A. Seller and Barrick Cortez, Inc., a Delaware corporation (“BCI”), are parties to that certain Amended and Restated Mining Venture Agreement dated as of October 29, 1999, and effective as of January 1, 1998, by and among Placer Cortez Inc. (“PCI”), Placer Dome U.S. Inc. ( “PDUS”) and Seller, as thereafter amended (hereinafter referred to as the “Joint Venture Agreement”), which Joint Venture Agreement governs the joint ownership of and conduct of operations on the property encompassed by the Area of Interest (as such term is defined in the Joint Venture Agreement). BCI has succeeded to PCI’s sixty percent (60%) Participating Interest (as such term is defined in the Joint Venture Agreement) and a corresponding undivided sixty percent (60%) interest, as a tenant-in-common, in the Assets (as such term is defined in the Joint Venture Agreement) owned by the Parties pursuant to the terms of the Joint Venture Agreement and BCI or its Affiliate has replaced PDUS as the Manager (as such term is defined in the Joint Venture Agreement). The Joint Venture Agreement is now between Seller and BCI. The joint venture between Seller and BCI is known as the “Cortez Joint Venture”. The mines and operations owned and operated pursuant to the terms of the Cortez Joint Venture are referred to collectively herein as the “Cortez Mine”.
     B. Seller owns a forty percent (40%) Participating Interest in the Cortez Joint Venture (the “Venture”) and a corresponding forty percent (40%) undivided interest as a tenant-in-common in all of the Assets of the Venture.
     C. Purchaser desires to acquire from Seller, and Seller desires to sell to Purchaser, Seller’s forty percent (40%) Participating Interest in the Venture, together with its corresponding undivided interest in the Assets, and any other mineral properties or other assets held by Seller in the Area of Interest, other than mineral interests held by Seller that were offered to the Venture pursuant to the terms of the Joint Venture Agreement and rejected by the Venture, and excluding the Production Royalty reserved under Section 2.3 below. Purchaser is willing to assume all obligations of Seller under the Joint Venture Agreement and to indemnify Seller against any liability of Seller related to the Venture or the operations of the Cortez Mine.
     D. For purposes of this Agreement, all capitalized terms used herein and not otherwise defined herein (including in Section 12.1 of this Agreement) shall have the meaning assigned to them in the Joint Venture Agreement.
 1 

 

AGREEMENT :
     NOW, THEREFORE, in consideration of the mutual promises of the Parties contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged by Seller and Purchaser, the Parties, incorporating the recitals set forth above, agree as follows:
1. SALE OF ASSETS .
     Subject to all of the terms and conditions of this Agreement and subject to the Production Royalty reserved under Section 2.3, for the consideration stated herein, Seller agrees to sell, assign, convey and transfer to Purchaser, and Purchaser agrees to purchase, acquire, accept and assume from Seller, the following assets (hereinafter sometimes referred to collectively as the “Purchased Assets” ):
     1.1 Seller’s Interest in the Participating Interest and Assets . All of Seller’s right, title and interest in, under and to Seller’s Participating Interest in the Venture (“Seller’s Participating Interest”), together with all of Seller’s right, title and interest in and to all of the Venture’s Assets, including all mined and crushed ore stockpiles, work-in-process inventories and fluids (subject to the provisions of Section 5.1), precipitate and slag, warehouse inventories, machinery, processing plants, equipment, buildings, structures, supplies, patented and unpatented mining claims and millsites, fee lands, leases, options, water rights, easements, rights-of-way, environmental permits and approvals, operating permits and licenses, Contracts, intellectual property, prepaid expenses, rights to refunds, technical information, geologic data and all other assets owned, used, or obtained in connection with the ownership or operation of the Venture, the Cortez Mine, or the Assets, whether held in the name of the Venture, the Seller, any Affiliate of Seller, any co-venturer, or otherwise.
     1.2 Interest in Joint Venture Agreement . All of Seller’s right, title and interest in the Joint Venture Agreement.
     1.3 Royalty Interest . Any royalties held by Seller or its Affiliates with respect to production from any properties within the Venture Area of Interest excluding the Production Royalty reserved under Section 2.3.
     1.4 Books and Records . Seller’s books and records relating to the Venture and Seller’s interest therein and to any other real or personal property held by Seller in the Area of Interest other than books and records given to the Seller by the Manager or internally generated by the Seller.
     1.5 Claims, etc . All Claims, rights or choses in action that Seller has or may have, now or in the future, against any Person, entity or company, other than Purchaser or its Affiliates, with respect to or arising out of the construction, development, ownership or operation of the Venture, the Venture Assets or the Cortez Mine
 2 

 

including, but not limited to, any warranty rights and any claims for damages, known or unknown, for intentional or negligent torts or torts involving strict liability and all rights to collect damages, including punitive damages, from contractors, engineers, or other third parties in connection with the design, construction, maintenance or operation of the Venture or its Assets.
2. PURCHASE PRICE AND TERMS OF PAYMENT .
     2.1 Purchase Price . The total purchase price (the “ Purchase Price ”) for the Purchased Assets shall be (a) One Billion Six Hundred Ninety-Five Million United States Dollars ($1,695,000,000), which shall be paid at Closing by wire transfer of immediately available funds to Seller’s account as directed by Seller to Purchaser in writing on or prior to the Closing, subject to adjustment pursuant to Section 7.1(b); and (b) the assumption of liabilities described in Section 2.2 below.
     2.2 Assumption of Liabilities .
          (a) At Closing, and subject to Section 2.2(b) below, the Purchaser shall assume all obligations and liabilities of any kind, character or nature whatsoever (whether known or unknown, accrued, absolute, contingent, determined, determinable or otherwise, and whether arising or to be performed prior to, on or after the Closing) of Seller and its Affiliates with respect to the Cortez Venture (collectively, the “Assumed Liabilities”) as provided in an assumption agreement to be delivered by Purchaser to Seller at the Closing, such assumption agreement to be in the form attached hereto as Exhibit A (the “Assumption Agreement”). The Assumed Liabilities shall include, without limitation, any such obligations and liabilities with respect to the following:
               (i) Seller’s ownership of a Participating Interest in the Joint Venture;
               (ii) Seller’s being a party to the Joint Venture Agreement, including funding obligations arising thereunder;
               (iii) Seller’s ownership of an undivided interest in the Venture’s Assets and any other assets included in the Purchased Assets;
               (iv) Operations of the Joint Venture (including developmental, exploration and mining activities) and other operations on or in respect of the Purchased Assets;
               (v) Contracts or other commitments related to Venture Operations or Joint Venture Assets, including royalty contracts;
               (vi) Environmental and reclamation liabilities, obligations or impacts arising from Venture Operations, including the Cortez Mine, or otherwise existing in respect of the Purchased Assets whether on or off of the areas covered thereby;
 3 

 

               (vii) Governmental permits or other authorizations granted in respect of Venture Operations and other undertakings provided in respect thereof, including, without limitation, (A) the Irrevocable Standby Letter of Credit Number SM201472W for approximately $3,500,000 initially issued January 31, 2003 by Wachovia Bank, NA on behalf of Seller for the benefit of the US Department of the Interior, Bureau of Land Management, as amended, and (B) that certain Sale and Purchase Agreement, dated as of October 9, 1991, between, among others, Seller and Vernon Taylor, Jr. (“ Taylor ”), and the following documents related to such agreement with Taylor: the Royalty Agreement, the Assignment of Venture Interests and Acceptance, the Assumption Agreement, and the Guaranty;
               (viii) Any reclamation or other bonds or any other agreement or business arrangement, other than the Joint Venture Agreement, whereby Seller or any of its Affiliates is, or may be, directly or indirectly responsible for liabilities or obligations of the Cortez Venture; and
               (ix) the interest in the joint venture formed and operated pursuant to that certain Joint Venture Operating Agreement, dated as of March 7, 1983 and amended on June 17, 1993, between Teck Cominco American Incorporated and Purchaser.
               (x) the liabilities of Seller retained under Section 15.2 of the Joint Venture Agreement, except to the extent that any such residual liabilities constitute a breach of this Purchase Agreement; and
               (xi) Pending or future litigation or other legal proceedings in respect to any of items (i) through (x) above.
          (b) Notwithstanding anything contained in this Section 2.2 to the contrary, Purchaser is not assuming and shall not be liable for any of the following obligations or liabilities of Seller or its Affiliates, and each of such obligations and liabilities shall not be Assumed Liabilities under this Agreement:
               (i) any obligation or liability of Seller arising out of the Purchase Agreement or the breach of any representation, warranty or covenant of the Seller under the Purchase Agreement;
               (ii) any liability or obligation, for any federal, state, local or foreign income tax, gross receipts tax, franchise tax or other tax of any kind or nature on the income, receipts or the Products received by Seller from the Venture or resulting from Seller’s ownership of a Participating Interest in the Venture and its Assets (except for any tax customarily paid by the Joint Venture including, without limitation, the Nevada net proceeds Tax related to the Joint Venture’s operations, which was assumed by Purchaser and any other tax Purchaser has assumed or agreed to pay pursuant to the Purchase Agreement);
               (iii) any obligation or liability of Seller to any Affiliate of Seller;
 4 

 

               (iv) any obligation or liability of Seller or any Seller Affiliate related to any Products of the Venture after distribution of such Product, or the proceeds of the sale thereof, to Seller;
               (v) any obligation of Seller arising from the fraud of Seller;
               (vi) except for obligations under 2.2(a)(viii) which do not constitute a breach of this Agreement, any obligation or liability of Seller or any Seller Affiliate for indebtedness for borrowed money or for other debts, liabilities or Losses that are the sole obligation of Seller or any Seller Affiliate and not a Venture obligation, even if such indebtedness or liability was created to fund a Venture obligation; and
               (vii) except for obligations under 2.2(a)(viii) which do not constitute a breach of this Agreement, any obligation or liability of Seller, of whatever kind or nature, incurred directly by Seller for its own account.
     2.3 Royalty .
          (a) As a part of the consideration for the transaction, Seller shall reserve a royalty (the “Production Royalty”), the terms of which are attached hereto as Exhibit B (the “Royalty Deed”).
          (b) If within two years after the Closing Date, Purchaser, BCI, the Venture, or any Affiliate of Purchaser or BCI acquires any interest or right to acquire any interest in real property within the Area of Interest, as defined on Exhibit P hereto, Purchaser and Seller shall enter into an new royalty deed in substantially the same form as the Royalty Deed that shall be applicable to the acquired interest. Each additional such acquired interest shall be made subject to such a new royalty deed. Each new royalty deed shall clarify that the 15,000,000 troy ounces of refined gold or with respect to silver, gold equivalents, threshold for commencing payment of the production royalty, as described in the Royalty Deed, is a one-time event applicable to all the royalty deeds simultaneously. Purchaser shall give notice of any such acquisition to Seller within thirty (30) days of making the acquisition and shall provide a form of the new royalty agreement for execution. Real property shall be deemed to be within the Area of Interest if any portion of a parcel of such real property, or of a group of mining claims, is located within the Area of Interest. Parcels or Mining claims that are not within the Area of Interest shall not be deemed to be within the Area of Interest for purposes of this provision
     2.4 Purchase Price Allocation . Purchaser and Seller agree that the Purchase Price, but only including the amount of assumed liabilities that are liabilities for income tax purposes (the “Tax Purchase Price”) shall be allocated among the Purchased Assets, other than Seller’s interest in the minerals in place, based upon their respective, mutually agreed upon fair market values which shall equal the net book value of the machinery and equipment transferred by Seller to Purchaser, as determined using the books and records of the Cortez Joint Venture, the agreed fair market value of minerals treated as “inventory” under GAAP transferred by Seller to Purchaser and held by the
 5 

 

Cortez Joint Venture at the time of Closing (provided such inventory is not required to be distributed to Seller pursuant to the Joint Venture Agreement), and the net book value, as determined using the books and records of the Cortez Joint Venture, of any other tangible assets not considered an interest in the minerals in place. All remaining Tax Purchase Price shall be treated as a lease bonus paid for the transfer of Seller’s interests in minerals in place subject to the reserved Royalty described in Section 2.3. The amount treated as a lease bonus shall be allocated, as the Purchaser shall determine in the exercise of its reasonable discretion, between fee or leased properties (including patented claims) and unpatented claims in which Seller has an economic interest in the minerals in place. The allocation of the Tax Purchase Price to tangible property and lease bonus payment shall be set forth on the allocation schedule attached hereto as Exhibit C (the “Allocation Schedule”) and the allocation and characterization set forth in this paragraph shall be used by Purchaser and Seller for all applicable tax purposes and in all filings, declarations and reports with the IRS in respect thereof. Both Seller and Purchaser agree to act reasonably and in good faith to complete the Allocation Schedule by February 29, 2008.
     2.5 Bonus Royalty . In addition to the Production Royalty, Purchaser shall pay the Seller a one time lump sum bonus royalty of Fifty Million Dollars ($50,000,00.00), which shall be paid, if at all, within thirty (30) days after the first date Purchaser and its Affiliates report, either publicly or pursuant to the reports to Seller contemplated by the following sentence, that there has been a cumulative addition to the “Total Gold Resource,” as defined below, of 12 million contained ounces of gold in excess of the 17.8 million contained ounces of Total Gold Resource reported on December 31, 2007, as reduced from time to time by the depletion of such Total Gold Resource from cumulative gold production from and after January 1, 2008. As used in this Section, the term “Total Gold Resource” means the proven and probable reserve and measured, indicated and inferred gold resources with respect to the Property (as defined in the Royalty Deed) (in its entirety and not just with respect to the 40% undivided interest of Purchaser). On or before each February 1 after the date of the Royalty Deed and until such time as the Bonus Royalty is paid, Purchaser and its Affiliates shall furnish to Seller a written report in reasonable detail, including the method and components of the calculation, of the Total Gold Resource within the Property, and the calculation of the addition and depletion of the same described above. The Total Gold Resource shall be determined in accordance with the applicable requirements of Canadian National Instrument 43-101 and the related standards of the Canadian Institute of Mining, Metallurgy and Petroleum. Purchaser and Seller agree to treat the Bonus Royalty described above as a contingent lease bonus eligible for open transaction treatment for all applicable federal, state and local income tax purposes. When and if paid, such lease bonus shall be allocated, as the Purchaser shall determine in the exercise of its reasonable discretion, between fee or leased properties (including patented claims) and unpatented claims in which Seller has an economic interest in the minerals in place, such determination to be made in the manner described in Exhibit C.
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3. REPRESENTATIONS AND WARRANTIES OF SELLER .
     Seller represents and warrants to Purchaser that all of the statements contained in this Article 3 are true and complete as of the date of this Agreement (or if made as of a specified date, as of such date) and will be true and complete as of the Closing Date as though made on the Closing Date:
     3.1 Organization and Powers of Seller . Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, is duly qualified to do business in the State of Nevada and has all requisite corporate power and authority to enter into this Agreement, to perform its obligations hereunder and to own all of the Purchased Assets.
     3.2 Validity and Enforceability . The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate and shareholder action on the part of Seller and no further corporate, shareholder or other action is necessary by Seller to empower it to carry out and perform its obligations hereunder. This Agreement constitutes a valid and legally binding obligation of Seller, enforceable against Seller in accordance with its terms (except as the enforceability thereof may be limited by bankruptcy, insolvency, bank moratorium or similar laws affecting creditors’ rights generally and laws restricting the availability of equitable remedies and may be subject to general principles of equity whether or not such enforceability is considered in a proceeding at equity or in law).
     3.3 Agreements, Consents, Approvals . None of the execution, delivery or performance of this Agreement by the Seller, the consummation by Seller of the transactions contemplated herein or compliance by the Seller with any of the provisions hereof will:
          (a) conflict with or result in any breach of any provision of the certificate of incorporation, by-laws or any other governance document of the Seller,
          (b) require any filing with, or permit, authorization, consent or approval of, any Governmental Authority or other Person (including, without limitation, consents from parties to loans, arrangements, Contracts, leases and other agreements to which the Seller or any of its Affiliates is a party),
          (c) require any consent, approval or notice under, or result in a violation or breach of, or constitute (with or without due notice or the passage of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration) under, any of the terms, conditions or provisions of any contract, agreement, arrangement or understanding to which the Seller or any of its Affiliates is a party or by which its assets or properties (including the Purchased Assets) are bound,
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          (d) violate any Order or Law applicable to the Seller or any of its Affiliates or any of their assets or properties (including the Purchased Assets), or
          (e) result in the imposition or creation of any Encumbrance, or provide any Person with the right to impose any Encumbrance upon, any of the Purchased Assets.
     3.4 No Brokers . Seller has not employed any broker or finder in connection with the transactions contemplated by this Agreement and it has taken no action, which would give rise to a valid claim against Purchaser or the Venture for a brokerage commission, finder’s fee or other like payment. Seller agrees to indemnify and hold Purchaser harmless against any claim for brokerage or other commissions by anyone claiming to have been acting on behalf of Seller relative to this Agreement or the transactions contemplated hereby.
     3.5 Title to Seller’s Interest . Seller is the sole beneficial and legal owner of its interest in the Joint Venture Agreement, of a 40% Participating Interest pursuant to the terms of the Joint Venture Agreement, and, pursuant to the terms of the Joint Venture Agreement, a 40% undivided interest as a tenant in common in the Properties and other Assets of the Venture. The Parties understand and acknowledge that the Venture’s properties are subject to various Encumbrances, and other than such Encumbrances and any lien created by the Joint Venture Agreement, Seller’s interest in the Joint Venture Agreement and its 40% Participating Interest pursuant to the terms of the Joint Venture Agreement, and its 40% undivided interest as a tenant in common in the Properties and other Assets of the Venture are not subject to any Encumbrances.
     3.6 Title to Venture Assets; Other Properties .
          (a) Title to Venture Assets . There are no Persons claiming any title or other interest (including any Encumbrance) in the Venture Properties or other Venture Assets by, through or under Seller or its Affiliates. For purposes of this Section 3.6(a), an interest in such Properties or other Assets created by or resulting from the actions of the Venture, of the other Participants or the Manager under the Joint Venture Agreement, or of the Participants acting collectively, shall not be considered to be by, through or under Seller or its Affiliates.
          (b) Other Properties in the Area of Interest . Neither Seller nor any of its Affiliates owns or holds or has the right to acquire, directly or indirectly, any mineral interests or water rights within the Area of Interest that is not included in the Venture Assets being transferred to Purchaser at the Closing other than royalty interests to be transferred pursuant to Section 1.3 or mineral interests held by Seller that were offered to the Venture pursuant to the terms of the Joint Venture Agreement and rejected by the Venture.
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     3.7 Right to Sell .
          (a) Seller has the exclusive right to dispose of the Purchased Assets as provided in this Agreement.
          (b) Other than the Joint Venture Agreement or which are included within the Purchased Assets or Assumed Liabilities, there are no joint venture agreements, shareholders agreements, partnership agreements, voting agreements, powers of attorney, co-ownership agreements, co-tenancy agreements, management agreements or other agreements or understandings in effect that affect the ownership, sale, transfer, management and control of Seller’s interest in any of the Purchased Assets.
          (c) Other than pursuant to this Agreement, there are no options, warrants, calls or other rights, entitlements, agreements, pledges, commitments or undertakings obligating Seller to sell, or entitling any Person to acquire, whether in any instance, through the passage of time or occurrence of any event, all or any part of the Seller’s interest in the Purchased Assets, or any rights or obligations capable of becoming an agreement to acquire any such interest.
     3.8 Other Contracts, Permits or Agreements . Seller, acting to bind the Venture, has not entered into any consulting contracts, construction contracts, operating agreements, licensing arrangements, development agreements, exploration arrangements, leases or rental agreements, use rights, governmental permits or licenses, bonds or any other Contracts, agreements or permits which affect the Venture, the operations of the Cortez Mine or the Purchased Assets.
     3.9 Litigation and Claims . There are no pending or, to Seller’s knowledge threatened, suits, actions, arbitrations, Claims, administrative proceedings or other civil or criminal proceedings, or to Seller’s knowledge governmental investigations of any kind with respect to or arising out of the operation of the Venture or the Cortez Mine or ownership of the Assets resulting from any act or failure to act on the part of Seller or its Affiliates and:
          (a) to which Seller or the Venture is or may be made a party; or
          (b) to which any of the Purchased Assets is or may be made subject;
including, if any, any of the foregoing matters that are defended by an insurance company.
     3.10 Taxes . For purposes of this Section 3.10, Taxes and Tax Returns shall mean all Taxes and Tax Returns except for those Tax Returns customarily filed by, and those Taxes customarily paid or withheld by, the Cortez Joint Venture, including without limitation, the Nevada net proceeds tax related to the Cortez Joint Venture’s operations which was assumed by the Purchaser and any other Taxes the
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Purchaser has assumed or agreed to pay or Tax Returns assumed or agreed to file pursuant to this Agreement. The Seller has properly filed on a timely basis all Tax Returns that it was required to file relating to Seller’s Participating Interest and the other Purchased Assets; all such Tax Returns are true, correct and complete; and the Seller has paid on a timely basis all Taxes that were due and payable by Seller relating to Seller’s Participating Interest and the other Purchased Assets and has duly withheld or collected (and, to the extent required, has properly paid to the appropriate Governmental Entity) all Taxes that the Seller was required by law to withhold or collect relating to the Seller’s Participating Interest and the other Purchased Assets. Except as otherwise acknowledged in Exhibit R, attached hereto, to the best of Seller’s knowledge, no examination or audit of any Tax Return of Seller by any Governmental Entity with respect to Seller’s Participating Interest or the other Purchased Assets is currently in progress or, to the Seller’s knowledge, threatened or contemplated.
     3.11 Disclaimer . EXCEPT AS EXPRESSLY PROVIDED IN THIS ARTICLE 3 OR ELSEWHERE IN THIS AGREEMENT OR IN THE DOCUMENTS DELIVERED IN CONNECTION WITH THIS AGREEMENT, THE PURCHASED ASSETS TO BE SOLD, ASSIGNED, TRANSFERRED OR DELIVERED BY SELLER TO PURCHASER PURSUANT TO THIS AGREEMENT SHALL BE SOLD, ASSIGNED, TRANSFERRED AND DELIVERED “AS IS, WHERE IS” WITH NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO TITLE, OWNERSHIP, USE, POSSESSION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, VALUE, MINEABILITY, CONDITION, OPERATION, DESIGN, CAPACITY OR OTHERWISE.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER .
     Purchaser represents and warrants to Seller that all of the statements contained in this Article 4 are true and complete as of the date of this Agreement (or if made as of a specified date, as of such date) and will be true and complete as of the Closing Date as though made on the Closing Date:
     4.1 Organization and Powers of Purchaser . Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, will be duly qualified to do business in the State of Nevada by the Closing Date, and has all requisite corporate power and authority to enter into this Agreement and perform its obligations hereunder.
     4.2 Validity and Enforceability . The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate and shareholder action on the part of Purchaser and no further corporate or shareholder action or other action is necessary by Purchaser to empower it to carry out and perform its obligations hereunder. This Agreement constitutes a valid and legally binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms (except as the enforceability thereof may be limited by bankruptcy, insolvency, bank moratorium or similar laws affecting
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creditors’ rights generally and laws restricting the availability of equitable remedies and may be subject to general principles of equity whether or not such enforceability is considered in a proceeding at equity or in law).
     4.3 Agreements, Consents, Approvals . None of the execution, delivery or performance of this Agreement by the Purchaser, the consummation by Purchaser of the transactions contemplated herein or compliance by the Purchaser with any of the provisions hereof will:
          (a) conflict with or result in any breach of any provision of the certificate of incorporation, by-laws or any other governance document of the Purchaser,
          (b) require any filing with, or permit, authorization, consent or approval of, any Governmental Authority or other Person (including, without limitation, consents from parties to loans, arrangements, Contracts, leases and other agreements to which the Purchaser or any of its Affiliates is a party),
          (c) require any consent, approval or notice under, or result in a violation or breach of, or constitute (with or without due notice or the passage of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration) under, any of the terms, conditions or provisions of any contract, agreement, arrangement or understanding to which the Purchaser or any of its Affiliates is a party or by which its assets or properties are bound, or
          (d) violate any Order or Law applicable to the Purchaser or any of its Affiliates or any of their assets or properties.
     4.4 No Brokers . Purchaser has not employed any broker or finder in connection with the transactions contemplated by this Agreement and it has taken no action which would give rise to a valid claim against Seller for a brokerage commission, finder’s fee or other like payment. Purchaser agrees to indemnify and hold Seller harmless against any claim for brokerage or other commissions by anyone claiming to have been acting on behalf of Purchaser relative to this Agreement or the transactions contemplated hereby.
5. CONDUCT BEFORE CLOSING AND OTHER AGREEMENTS .
     5.1 Doré and Bullion . Prior to the Effective Date, Seller shall take distribution of its share of Venture Products at the refinery in the customary fashion. Seller shall receive distribution after the Effective Date of its share of refined gold and silver produced from the Venture’s doré gold and silver bars that have been shipped, or are ready for shipment, to the refinery from the Cortez Mine in accordance with normal procedures as of 11:59 p.m., Pacific Standard Time, on the date immediately preceding the Effective Date. There shall be no deductions from the amounts delivered to Seller for any cost or expenditure relating to a Post-Effective Date Period. Seller may have a
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representative at the Cortez Mine at such time in order to verify the quantity of such doré gold and silver bars. Seller will cooperate with Purchaser in giving notification to the refinery of Purchaser’s entitlement to all refined gold and silver originating from the Cortez Mine after deliveries to Seller as above provided are completed. Except for such refined gold and silver, Seller shall, subject to Section 5.2, have no rights to Products from the Cortez Mine from and after the Effective Date unless this Agreement is terminated prior to the Closing.
     5.2 Economic Benefit . If Closing occurs after 11:59 p.m., Pacific Standard Time on February 29, 2008, then during the Post-Effective Date Period, Purchaser is:
          (a) entitled to all of the Products, rights to Product, revenue from and other economic benefit of the Purchased Assets, including without limitation all rights to take Seller’s share of Products from the Venture attributable to the Post-Effective Date Period; and
          (b) required to make and pay when due, without set off or deduction, all payments otherwise due from Seller under Sections 5.2, 9.9 and 10.2 of the Joint Venture Agreement for the Post-Effective Date Period (including without limitation all required Seller contributions with respect to adopted Programs or Budgets that are due within the Post-Effective Date Period). Purchaser agrees that for purposes of the Joint Venture Agreement, Seller shall not be deemed in default or subject to reduction of its Participating Interest as a result of Purchaser making such payments on behalf of Seller.
     5.3 Rebalancing . If Closing does not occur, then within ninety (90) days of the date of termination of this Agreement or five (5) days after any rebalancing amount is finally determined under Section 5.4 (whichever is the later), the Parties shall reverse the economic effect of Section 5.2 by making a payment (the “Rebalancing Payment” ) as follows:
          (a) Purchaser shall pay to Seller a Rebalancing Payment equal to the excess, if any, of: (i) the value (as shown on the Venture’s books) of Seller’s share of Products taken and sold by Purchaser under Section 5.2(a) above; over (ii) the sum of (A) the payments made by Purchaser under Section 5.2(b) above on behalf of Seller, plus (B) any Tax (whether direct or indirect), excluding all Taxes based on income, payable by Purchaser on Product taken under Section 5.2(a); or
          (b) Seller shall pay to Purchaser a Rebalancing Payment equal to the excess, if any, of: (i) the sum of (A) the payments made by Purchaser under Section 5.2(b) above on behalf of Seller, plus (B) any Tax (whether direct or indirect), excluding all Taxes based on income, payable by Purchaser on Product taken under Section 5.2(a) by Purchaser under Section 5.2(a); over (ii) the value (as shown on the Venture’s books) of Seller’s share of Products taken and sold by Purchaser under Section 5.2(a) above.
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Purchaser must promptly provide Seller with: (i) notice of all payments due by Seller in accordance with its obligation under the Joint Venture Agreement (which under Section 5.2(b) are to be paid when due by Purchaser on Seller’s behalf during the Post-Effective Date Period); and (ii) full and complete details of the value of Seller’s share of Product during the Post-Effective Date Period taken by Purchaser in accordance with Section 5.2(a); and (iii) any other information reasonably requested by Seller to monitor compliance with this Section 5.3. In the event Closing occurs, no Rebalancing Payment shall be payable by either Party.
     5.4 Calculation of the Rebalancing Amount and Dispute Resolution .
          (a) For the purposes of Section 5.3, Purchaser must prepare and provide Seller with a draft calculation (in writing) showing Purchaser’s calculation of the Rebalancing Payment due under Section 5.3 (“Draft Calculation”) no later than thirty (30) days after the date of termination of this Agreement. Purchaser must ensure that Seller and its advisers are given full access to the working papers and other supporting material and information that Seller and its advisers reasonably require to verify the Draft Calculation.
          (b) If Seller objects to the Draft Calculation by written notice given to Purchaser within ten (10) days of being provided with the Draft Calculation under Section 5.4(a), Purchaser and Seller must enter into good faith negotiations and use all reasonable efforts to resolve the dispute. If Seller has accepted the Draft Calculation or has not objected to it within the ten (10) day period referred to above, then the Draft Calculation will be deemed to be the final calculation of the Rebalancing Payment payable under Section 5.3, which will be conclusive, final and binding on the Parties.
          (c) If Seller objects to any matter in the Draft Calculation in accordance with Section 5.4(b) above and Purchaser and Seller cannot resolve the objection within fifteen (15) days of the date that Seller notifies Purchaser in writing of an objection to the Draft Calculation, then the matter will be referred for resolution to an independent international accounting firm agreed upon by both Purchaser and Seller within a further seven (7) days. If within this period, the Parties cannot agree on the identity of that independent international accounting firm, either Purchaser or Seller may request that a court of competent jurisdiction designate and appoint an independent person to determine the dispute. The person agreed or nominated under this subsection will be the “Expert” for the purposes of this clause. The Purchaser and Seller must instruct the Expert to: (i) decide the procedures to be followed in order to resolve the dispute; (ii) decide within the shortest practicable time the matters of disagreement; and (iii) apply United States generally accepted accounting principles and other professional accounting reporting requirements issued by the joint accounting bodies to determine the Rebalancing Payment payable under Section 5.3.
          (d) Purchaser must provide, and must ensure that Purchaser’s accountants provide, all information and assistance that the Expert reasonably requests for the purpose of resolving the dispute. The Expert will act as expert, not as an
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arbitrator in determining the dispute. The determination of the Expert will be final, conclusive and binding, except in the case of manifest error. The cost of the Expert must be shared equally between Parties.
     5.5 Releases of Claims . At the Closing, Seller shall deliver a release ( the “Seller’s Release”), which Seller’s Release shall be in the form attached hereto as Exhibit D, releasing BCI, all predecessors in interest, the Venture, and Purchaser and Purchaser’s Affiliates from all liabilities or Claims of Seller and its Affiliates against BCI, the Manager, all predecessors in interest, the Venture and Purchaser or Purchaser’s Affiliates related to the Venture. Notwithstanding the foregoing, the Release shall not extinguish Seller’s audit rights as granted in the Joint Venture Agreement. Such audit rights shall continue for six months after the Closing and Seller shall have and retain against the Venture, BCI, or the Manager whatever Claims arise out of the audit and such Claims shall not be extinguished by the Release. At the Closing, Purchaser and BCI shall deliver a release ( the “Purchaser’s Release”), which Purchaser’s Release shall be in the form attached hereto as Exhibit E, releasing Seller and its Affiliates from all liabilities or Claims of Purchaser, BCI, all predecessors in interest and their Affiliates against Seller and its Affiliates related to the Venture.
     5.6 Settlement of Accounts Prior to Effective Date . Seller shall satisfy all of its obligations under and pursuant to the Joint Venture Agreement that are to be performed or satisfied prior to the Effective Date including payment of all cash calls made by the Manager in the ordinary course prior to the Effective Date. After the date of this Agreement any cash calls for February shall be satisfied out of the distribution made pursuant to Section 5.1 and Seller shall not be liable for any deficit if the distributions are insufficient to cover such cash calls. If this Agreement is terminated for any reason, Seller shall again become liable for such cash calls.
     5.7 Purchaser Actions . Between the date of this Agreement and the Closing Date, Purchaser will not take any action that would cause Purchaser’s representations and warranties to be untrue at the Closing or act or fail to act in any manner that would be a breach of any covenant or agreement of Purchaser under this Agreement.
     5.8 Conduct of BCI and Seller Prior to Closing . During the period from the date of this Agreement to the Closing Date, Seller shall, and Purchaser shall cause BCI to, do the following:
          (a) except as contemplated in this Agreement, and to the extent within their respective control, Seller and BCI will in all material respects operate, or cause to operate, the Venture in compliance with the terms of the Joint Venture Agreement and applicable Laws and in the ordinary course of business;
          (b) cooperate with each other and use all commercially reasonable efforts to obtain all necessary consents, approvals and authorizations of, and make all necessary filings and registrations with, any Governmental Authority under applicable Law. With respect to such consents, authorizations and approvals not obtained prior to
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Closing, Seller’s obligations under this Section 5.8 shall survive Closing until such time that all such consents, authorizations and approvals have been obtained.
          (c) each of the Parties has made a determination that no notification or report forms are required to be filed under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
     5.9 Seller’s Actions . Between the date of this Agreement and the Closing Date, Seller will not:
          (a) sell, pledge, assign or transfer in any manner any interest in any of the Purchased Assets, or grant or issue any option, warrant or other right whatsoever to purchase or acquire any interest in the Purchased Assets (except as provided in Section 5.2 above),
          (b) take any action that would cause Seller’s representations and warranties to be untrue at the Closing or act or fail to act in any manner that would be a breach of any covenant or agreement of Seller under this Agreement, or
          (c) dissolve, reorganize or otherwise change the corporate structure of Seller.
     5.10 Preservation of Records . Purchaser shall take all reasonable steps to preserve and keep the records of the Venture relating to the activities of the Venture occurring prior to the Closing for a period of six years from the Closing Date, or for any longer period as may be required by any Laws or Governmental Authority, and shall make such records available to Seller as may be reasonably requested by it in connection with any inquiries or requirements of any Governmental Authority or as required in connection with the preparation of financial statements or Tax Returns. Notwithstanding the generality of the foregoing, Purchaser shall not be liable to the Seller in the event of any accidental destruction of such records caused other than by the gross negligence or willful misconduct of Purchaser.
     5.11 Non-Solicitation . Seller shall not, and shall cause its Affiliates not to, for a period commencing on the date of this Agreement and continuing until the date that is twenty-four (24) months after the Closing Date, either alone or in conjunction with any Person in any manner, whatsoever, directly or indirectly, induce any person who is an employee of BCI or its Affiliates at the Venture or in connection with the Venture’s operations, to leave or otherwise cease dealing with BCI or any of its Affiliates or the Venture, nor solicit for employment, employ or otherwise contract for the services of any person who is an employee of BCI or the Venture or its Affiliates at the Venture or in connection with its operations, provided that nothing herein shall restrict Seller’s or its Affiliate’s general solicitations for employment.
     5.12 Actions to Satisfy Conditions . Each of the Parties shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do,
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or cause to be done, all other things necessary or advisable to consummate and make effective as promptly as practicable the transactions contemplated by this Agreement.
     5.13 Litigation Support . In the event and for so long as any Party (or the Affiliate of any Party) actively is contesting or defending against any third party action, suit, proceeding, hearing, investigation, charge, complaint, claim or demand in connection with any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act or transaction on or prior to the Closing related to the Venture or the Venture’s operation involving any Party hereto or its Affiliates, the other Party will reasonably cooperate with it and its counsel in the defense or contest by making available its relevant books and records.
     5.14 Disclosure Supplements by Seller . In the event that following the date hereof and prior to the Closing Date there occurs an event that would cause a breach of a representation or warranty made by Seller in this Agreement, Seller shall disclose such matter to Purchaser. No such disclosure shall be deemed to cure a breach of any representation or warranty of Seller made in this Agreement for the purposes of determining satisfaction of the Purchaser’s conditions to closing or relieve Seller of any liabilities to Purchaser if the event was caused by a violation by Seller of a covenant that Seller has made in this Agreement.
     5.15 Disclosure Supplements of Purchaser . In the event that following the date hereof and prior to the Closing Date there occurs an event that would cause a breach of a representation or warranty made by Purchaser in this Agreement, Purchaser shall disclose such matter to Seller. No such disclosure shall be deemed to cure a breach of any representation or warranty of Purchaser made in this Agreement for the purposes of determining satisfaction of the Seller’s conditions to closing or relieve Purchaser of any liabilities to Seller if the event was caused by a violation by Purchaser of a covenant that Purchaser has made in this Agreement.
6. CONDITIONS TO CLOSING .
     6.1 Conditions Precedent in Favor of Seller . The obligations of Seller to complete the sale of the Purchased Assets shall be subject to the satisfaction of or compliance with, at or before the Closing, each of the following conditions precedent (each of which is acknowledged to be inserted for the exclusive benefit of Seller and may be waived by it in whole or in part):
          (a) No Suits or Actions . There shall be no Order issued or preventing, and no pending Claim, or judicial administrative proceeding, or investigation against any Party or the Venture by any Person if such Claim, investigation or proceeding is reasonably likely to result in a Material Adverse Effect on the Seller.
          (b) Receipt of Closing Documentation . All documentation relating to the due authorization and completion of the transactions contemplated by this
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Agreement shall be satisfactory to Seller, acting reasonably, and Seller shall have received from Purchaser all such documentation or other evidence as it may reasonably request in order to: (i) establish the taking of all necessary corporate and shareholder actions and proceedings in connection with such transactions; and (ii) the completion of the transactions contemplated by this Agreement.
          (c) Performance of Obligations . Purchaser shall have performed or complied with, in all material respects, all of its obligations and covenants under this Agreement and Seller shall have received a certificate signed by a senior officer of Purchaser confirming such performance and compliance.
          (d) Release . Seller shall have received the Purchaser’s Release from Purchaser and BCI.
          (e) Assumption Agreement . Seller shall have received the Assumption Agreement from Purchaser.
          (f) Royalty Deed . Seller shall have received the Royalty Deed executed by both Venture Participants and the Venture.
          (g) Purchaser’s Guaranty . Seller shall have received the Purchaser’s Guaranty.
          (h) Truth and Accuracy of Representations of Purchaser at Closing. All of the representations and warranties of Purchaser made in or pursuant to this Agreement shall be true and correct, in all material respects, as of the Closing and with the same effect as if made at and as of the Closing, and Seller shall have received a certificate signed by a senior officer of Purchaser confirming the truth and correctness of such representations and warranties as of the Closing Date.
          (i) Consents and Authorization . All consents in connection with the completion of the transactions contemplated by this Agreement shall have been obtained at or before the Closing on terms acceptable to Seller, acting reasonably, the failure of which to obtain would have a Material Adverse Effect on the Seller or the Venture.
     6.2. Conditions Precedent in Favor of Purchaser . The obligations of Purchaser to complete the acquisition of Seller’s interest in the Purchased Assets shall be subject to the satisfaction of or compliance with, at or before the Closing, each of the following conditions precedent (each of which is acknowledged to be inserted for the exclusive benefit of Purchaser and may be waived by it in whole or in part).
          (a) No Suits or Actions . There shall be no Order issued or preventing, and no pending Claim, or judicial administrative proceeding, or investigation against any Party or the Venture by any Person if such Claim,
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investigation or proceeding is reasonably likely to result in a Material Adverse Effect on the Purchaser considering Purchaser to have a value equal to the Purchase Price.
          (b) Receipt of Closing Documentation. All documentation relating to the due authorization and completion of the transactions contemplated by this Agreement shall be satisfactory to Purchaser, acting reasonably, and Purchaser shall have received from Seller all such documentation or other evidence as it may reasonably request in order to: (i) establish the taking of all necessary corporate and shareholder actions and proceedings in connection with such transactions; and (ii) the completion of the transactions contemplated by this Agreement.
          (c) Truth and Accuracy of Representations of Seller at Closing. All of the representations and warranties of Seller made in or pursuant to this Agreement shall be true and correct, in all material respects, as of the Closing and with the same effect as if made at and as of the Closing, and Purchaser shall have received a certificate signed by a senior officer of Seller confirming the truth and correctness of such representations and warranties as of the Closing Date.
          (d) Performance of Obligations. Seller shall have performed or complied with, in all material respects, all of its obligations and covenants under this Agreement and Purchaser shall have received a certificate signed by a senior officer of Seller confirming such performance and compliance.
          (e) Members of Management Committee. The members of the Management Committee of the Venture nominated by Seller shall have resigned and all of such members shall have provided full and final releases to and in favor of the Venture and Purchaser, in form reasonably acceptable to Purchaser.
          (f) Consents and Authorization. All consents in connection with the completion of the transactions contemplated by this Agreement shall have been obtained at or before the Closing on terms acceptable to Purchaser, acting reasonably, the failure of which to obtain would have a Material Adverse Effect on the Purchaser or the Venture.
          (g) Release. Purchaser shall have received the Seller’s Release.
          (h) Seller’s Guaranty. Purchaser shall have received the Seller’s Guaranty.
7. CLOSING.
     7.1 Date of Closing.
          (a) Subject to the satisfaction or waiver of the conditions precedent to Closing set forth in Article 6, the closing of this transaction (the “Closing”) shall take place in the offices of Parr Waddoups Brown Gee & Loveless at 185 South State
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Street, Suite 1300, Salt Lake City, Utah, on March 6, 2008 (the “Closing Date”) or at such other time or place as the Parties may agree in writing. Notwithstanding the foregoing, during the period commencing at 12:01 a.m., Pacific Standard Time on March 1, 2008 (the “Effective Date”) and continuing through and including the earlier of (i) the Closing Date, or (ii) the effective date of termination of this Agreement (such period, the “Post-Effective Date Period”), Purchaser shall have the economic rights and burdens with respect to the Purchased Assets and Venture as provided for in Section 5.2.
          (b) If the Closing has not occurred by March 6, 2008 and unless such failure to close was caused by the Seller, then commencing March 1 and continuing through the day before the Closing occurs, the cash portion of the Purchase Price, as set forth in Section 2.1, shall bear interest at a per annum rate equal to 4.75% per annum (and calculated based on a 365 day year and actual days elapsed). If the Closing has not occurred by March 6, 2008, because of the failure of a condition precedent, the Parties agree to close within two business days of the satisfaction of all conditions precedent.
     7.2 Purchase and Sale of Purchased Assets. Subject to the provisions of this Agreement, at the Closing, Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, the Purchased Assets.
     7.3  Delivery of Seller Transfer Documents . At the Closing, Seller shall execute and deliver to Purchaser the following documents, in each instance, where required, properly executed:
          (a) An assignment of Seller’s Participating Interest in the Venture in the form attached hereto as Exhibit F.
          (b) A quitclaim deed conveying Seller’s interest in all patented mining claims, all unpatented mining claims and millsites, and all fee properties, including fixtures, in the form attached hereto as Exhibit G.
          (c) An assignment of Seller’s interest in all mining leases, royalty agreements, joint venture agreements, and other Contracts relating to the Cortez Mine or to the Venture in the form attached hereto as Exhibit H.
          (d) A quitclaim deed conveying Seller’s interest in all water rights pertaining or appurtenant to the Cortez Mine or to the Venture in the form attached hereto as Exhibit I.
          (e) An assignment of Seller’s interest in all easements and rights-of- way pertaining to the Cortez Mine or to the Venture in the form attached hereto as Exhibit J.
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          (f) An assignment of Seller’s interest in all environmental and operating permits, authorizations and approvals relating to the Cortez Mine or to the Venture in the form attached hereto as Exhibit K.
          (g) A bill of sale transferring Seller’s interest in all personal property relating to the Cortez Mine or to the Venture in the form attached hereto as Exhibit L.
          (h) An assignment of royalty interests held directly by Seller or any Affiliate of Seller in the form attached hereto as Exhibit M.
          (i) The Seller’s Release.
          (j) The certificates required by Sections 6.2(c) and 6.2(d).
          (k) The documentation required by Section 6.2(b).
          (l) The resignations and releases required by Section 6.2(e).
          (m) An affidavit in form reasonably required by Purchaser that Seller is exempt from withholding under Section 1445 or, if applicable, Section 1442 of the Internal Revenue Code of 1986, as amended.
          (n) The Seller’s Guaranty.
     7.4 Delivery of Purchase Price and Purchaser Documents. At the Closing, the Purchaser shall deliver to Seller the following in each instance, where required, properly executed:
          (a) The Purchase Price.
          (b) The Purchaser’s Release.
          (c) The certificates required by Sections 6.1 (c) and 6.1 (h).
          (d) The Assumption Agreement.
          (e) The documentation required by Section 6.1 (b).
          (f) The Royalty Deed.
          (g) The Purchaser’s Guaranty.
     7.5 Deliveries Conditional. Each of the events to occur at the Closing pursuant to Sections 7.3 and 7.4 is a condition precedent to the others and shall be deemed to have occurred simultaneously with the others.
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8. POST-CLOSING ACTIONS.
     8.1 Confidentiality. Nothing in this Agreement shall be construed as modifying or amending the provisions of Article XVII of the Joint Venture Agreement regarding, among other things, the confidentiality of all information obtained from the Venture activities prior to the Closing Date hereunder, including its applicability to Seller for two years after completion of the transfer of Seller’s Participating Interest to Purchaser at the Closing. No public statement or press release shall be made by any Party unless such Party intending to make such disclosure shall consult, where reasonably practicable, with the other Party prior to making such statement or press release, and each Party shall use all reasonable efforts, acting in good faith, to agree upon a text for such statement or press release which is satisfactory to each Party.
     8.2 Subsequent Actions. If at any time after the Closing Purchaser will consider or be advised that any instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm ownership (of record or otherwise) in Purchaser and its right, title or interest in, to or under the Purchased Assets or otherwise to carry out this Agreement, Seller shall execute and deliver all instruments of conveyance, powers of attorney, assignments and assurances and take and do all such other actions and things as may be reasonably requested by Purchaser in order to vest, perfect or confirm any and all right, title and interest in, to and under the Purchased Assets in Purchaser or otherwise to carry out this Agreement. In case at any time after the Closing Date any further action is necessary, proper or advisable to carry out the purposes of this Agreement, as soon as reasonably practicable, each Party hereto shall take, or cause its proper officers, directors or other personnel to take, all such necessary, proper or advisable actions. Within 10 days after the Closing, Seller shall deliver or make available to Purchaser for pickup at convenient times and places all files and records related to the Purchased Assets that have not previously been delivered to the Purchaser and which are in the possession of Seller.
     8.3 Purchaser Obligations. Purchaser shall take necessary actions to cause Seller no longer to be named as a responsible party or a participant under any bonds, permits or other undertakings related to the Purchased Assets or the Cortez Mine and the operations of the Venture thereon (“Seller Obligations”). Such actions may include substitution of Purchaser as the responsible party in place of Seller or notification of Governmental Authorities of the acquisition of Seller’s Participating Interest by Purchaser, where required. Purchaser shall use its commercially reasonable best efforts to complete such actions as soon as reasonably practicable but in all events within 180 days after the Closing Date.
     8.4  Cooperation Regarding Claims . To the extent reasonable, Seller shall cooperate with Purchaser in the pursuit of any Claims or choses in action included in the Purchased Assets pursuant to Section 1.4, and such cooperation may include, but shall not be limited to, suit in Seller’s name, if required.
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     8.5 Expenses. Each Party shall bear all costs incurred by it in connection with the analysis, negotiation, completion and performance of this Agreement, including, but not limited to, fees of attorneys, consultants, accountants, actuaries or other agents. Purchaser shall bear all recording fees, transfer taxes, sales and use taxes or other similar costs of Closing, if any. Except as provided in the immediately preceding sentence (relating to transfer-type taxes), all Taxes imposed on the Seller shall be the sole responsibility of the Seller, including any income, gross receipts or franchise taxes imposed on Seller with respect to the transactions contemplated hereby.
9. ASSUMPTION OF LIABILITIES; INDEMNITIES; SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
     9.1 Seller’s Indemnity. Seller agrees to indemnify, defend and hold Purchaser and its Affiliates, and each of its and their officers, directors, and employees (together with Purchaser, “Purchaser Indemnitees”) harmless from and against any and all liabilities, damages, obligations, claims and expenses, including, without limitation, reasonable costs of investigation and reasonable defense and attorneys’ fees (collectively “Losses” ) that a Purchaser Indemnitee sustains or becomes subject to as a result of
          (a) the breach of any of the warranties, representations, covenants or agreements of Seller set forth in this Agreement or in any operative document delivered pursuant to this Agreement;
          (b) any and all matters as to which Seller remains liable under this Agreement (including the Schedules and Exhibits hereto) or any other agreement delivered pursuant to the terms of this Agreement; and
          (c) any and all actions, suits, proceedings, demands, assessments, judgments, damages, awards, costs and expenses (including third-party fees and expenses) incident to any of the foregoing or incurred in connection with the enforcement of the rights of any Purchaser Indemnitee with respect to the foregoing.
     9.2 Purchaser’s Indemnity. Purchaser agrees to indemnify, defend and hold Seller and its Affiliates, and each of its and their officers, directors and employees (together with Seller, “Seller Indemnitees”) harmless from and against all Losses that a Seller Indemnitee sustains or becomes subject to arising out of or in connection with:
          (a) the Assumed Liabilities (including any failure by Purchaser to pay, perform or otherwise discharge any of the Assumed Liabilities in accordance with their terms), whether such Assumed Liabilities are known or unknown, accrued, absolute, contingent, determined, determinable or otherwise, and whether such Assumed Liabilities relate to or arise from operations, events, occurrences, actions, omissions, facts, circumstances or matters occurring, existing or asserted, before, at or after the date of the Closing (but excluding items for which a Purchaser Indemnitee is entitled to indemnification pursuant to Section 9.1);
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          (b) the breach of any of the warranties, representations, covenants or agreements of Purchaser set forth in this Agreement or in any operative documents delivered pursuant to this Agreement; and
          (c) any and all actions, suits, proceedings, demands, assessments, judgments, damages, awards, costs and expenses (including third-party fees and expenses) incident to any of the foregoing or incurred in connection with the enforcement of the rights of any Seller Indemnitee with respect to the foregoing.
     9.3 Third Party Claim. Upon receipt by any person seeking to be indemnified pursuant to this Article 9 (the “Indemnitee”) of notice of any legal proceedings, (each a “Claim”) against it which has or is expected to give rise to a claim for Losses, the Indemnitee shall give prompt written notice thereof (which shall be within ten (10) days after receipt by the Indemnitee of such Claim) to the person from which it seeks to be indemnified (the “Indemnitor”), indicating the nature of such Claim and the basis therefor; provided, however, that any delay or failure by the Indemnitee to give notice to the Indemnitor shall relieve the Indemnitor of its obligations hereunder only to the extent, if at all, that it is materially prejudiced by reason of such delay or failure. The Indemnitor shall have thirty (30) days after receipt of the Indemnitee’s notice to elect, at its option, to assume the defense of, at its own expense and by its own counsel reasonably acceptable to the Indemnitee, any such Claim. If the Indemnitor shall undertake to compromise or defend any such Claim, it shall promptly notify the Indemnitee of its intention to do so. Notwithstanding an election by the Indemnitor to assume the defense of such Claim, (i) the Indemnitee shall have the right to employ at its cost separate counsel and to participate in the defense of such Claim, and (ii) the Indemnitee shall have the right at any time after the Indemnitor assumes the defense of such Claim to assume the defense of such Claim if the Indemnitor subsequently determines that it does not believe the Claim is one for which the Indemnitee is entitled to indemnification, compensation or reimbursement under this Article 9 and requests that the Indemnitee assume the defense of such Claim (in which case the Indemnitee may retain the legal counsel previously retained by the Indemnitor to assist in the defense of such Claim). The Indemnitee and Indemnitor and their counsel shall cooperate fully in the compromise or defense of any Claim subject to this Article 9 and keep one another informed of all developments relating to any such Claims, and provide copies of all relevant correspondence and documentation relating thereto. If an Indemnitor receiving a notice of Claim does not elect to defend such Claim within the thirty (30) day period referred to above, the Indemnitee shall have the right, in addition to any other right or remedy it may have hereunder, at the Indemnitor’s expense, to defend such Claim. The Indemnitee’s defense of, or participation in the defense of, any such Claim shall not in any way diminish or lessen the obligations of the Indemnitor under this Article 9. In no event may an Indemnitor or an Indemnitee settle or compromise any Claim without the consent of the other (which consent will not be unreasonably withheld, conditioned or delayed).
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     9.4 Indemnity Exclusive Remedy. The indemnity in this Article 9 shall be the exclusive remedy for any misrepresentation or breach of warranty or breach of any covenant or agreement in this Agreement. Notwithstanding anything to the contrary in this Agreement, Purchaser and its successors and assigns understand and agree that the indemnification obligations of Seller under Article 9 of this Agreement shall constitute the sole and exclusive remedy of Purchaser with respect to any matters or claims arising under Environmental Laws. For purposes of this Agreement, (a) “Environmental Laws” means any foreign, federal, state or local law (including common law), statute, ordinance, rule, regulation or contractual obligation governing pollution, the environment or protection of human health or safety, as currently in effect or as may be enacted or amended hereafter. Without limiting the generality of the foregoing, “Environmental Laws” include: (i) the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., as amended; (ii) CERCLA; (iii) the Superfund Amendment and Reauthorization Act of 1984, as amended; (iv) the Clean Air Act, 42 U.S.C. § 7401 et seq ., as amended; (v) the Clean Water Act, 33 U.S.C. § 1251 et seq; (vi) the Safe Drinking Water Act, 42 U.S.C. § 300f et seq .; and (vii) the Occupational Safety and Health Act of 1976, 29 U.S.C. § 651, as amended, and all rules and regulations promulgated thereunder; and (b) “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 26 U.S.C. § 4611 and 42 U.S.C. § 9601 et seq ., as amended.
     9.5 Survival of Covenants, Representations and Warranties. The representations and warranties of the Parties made herein or in any other documentation delivered pursuant to this Agreement and the covenants and agreements to be performed on or prior to the Closing Date shall survive the Closing Date, and shall not merge with or be extinguished by delivery of any of the assignment and transfer documents contemplated by this Agreement. The absence or limitation of representations and warranties in such documents shall not diminish in any way the representations and warranties of the Parties in this Agreement.
     9.6  Parent or Affiliate Guaranties . The Parties agree that each of them will cause that a Guaranty shall be executed and delivered, at the sole election of the Seller as to which parties shall deliver such Guaranties, (a) in the case of Seller, in the form attached hereto as Exhibit N (the “Seller’s Guaranty”), by either Rio Tinto PLC or Kennecott Holdings Corporation, and (b) in the case of Purchaser, in the form attached hereto as Exhibit O (the “Purchaser’s Guaranty”), by Barrick Gold Corporation, if Seller elects that Rio Tinto PLC shall deliver such Guaranty, or ABX Financeco, Inc., if Seller elects that Kennecott Holdings Corporation shall deliver such Guaranty. Such Guaranties shall provide that the guarantors shall guaranty the accuracy and/or performance of all representations, warranties, covenants, obligations, indemnities and other agreements of the Seller or the Purchaser, as the case may be, and their respective Affiliates under this Agreement and any other agreement or document delivered in connection with this Agreement.
10. COVENANT NOT TO COMPETE.
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     Seller shall not directly or indirectly acquire, or cause or permit any of its Affiliates to directly or indirectly acquire, any interest in property within the Area of Interest for two (2) years after the effective date of this Agreement. If Seller breaches this Article 10, Seller shall be obligated to, or shall cause its Affiliate to, offer to convey to the Purchaser and BCI, as required by Article 13 of the Joint Venture Agreement, without cost (other than ongoing obligations (e.g., royalty payments) to the transferor of such property or interest), any such property or interest so acquired. Such offer shall be made in writing and can be accepted by the Purchaser and BCI at any time within forty-five (45) days after it is received by Purchaser and BCI.
11. TERMINATION.
     11.1 Termination. This Agreement may be terminated at any time prior to the Closing only as follows:
          (a) by either the Seller or the Purchaser if the Closing shall not have occurred by March 30, 2008 (the “Termination Date” ); provided that the right to terminate this Agreement under this Section 11.1 (a) shall not be available to any Party whose failure to fulfill any obligation under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing to occur on or prior to such date;
          (b) by either the Purchaser or the Seller in the event that any Order from a Governmental Authority has been issued enjoining or preventing the consummation of the transactions contemplated by this Agreement;
          (c) by the Seller, if Purchaser shall have breached any of its representations, warranties, covenants or agreements contained in this Agreement which would give rise to the failure of a condition set forth in Section 6.1, which breach cannot be or has not been cured within twenty (20) days after the giving of written notice by the Seller to the Purchaser specifying such breach. If a notice has been given pursuant to this Section 11.1(c) or pursuant to Section 11.1(d) and such 20 day period would end after the Termination Date, the Termination Date shall automatically be extended until five days after the end of such 20 day period;
          (d) by the Purchaser, if Seller shall have breached any of its representations, warranties, covenants or agreements contained in this Agreement which would give rise to the failure of a condition set forth in Section 6.2, which breach cannot be or has not been cured within twenty (20) days after the giving of written notice by the Purchaser to the Seller specifying such breach; or
          (e) by the mutual written consent of the Seller and the Purchaser.
12. DEFINITIONS AND RULES OF INTERPRETATION.
     12.1 Definitions. Whenever used in this Agreement, the following words and terms have the meanings set out below:
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      “Claims” means claims, demands, complaints, grievances, actions, applications, suits, causes of action, Orders, charges, indictments, prosecutions, informations or other similar processes, assessments or rights.
      “Contracts” means any and all contracts, agreements, leases, licenses, obligations, promises, undertakings, understandings, arrangements, commitments, entitlements or engagements to which the relevant Party is a party or by which any of them are bound or under which the relevant Party has, or will have, any liability or contingent liability (in each case, whether written or oral, express or implied).
      “Effective Date” shall have the meaning set forth in Section 7.1 of this Agreement.
      “Encumbrances” means pledges, liens, charges, security interests, leases, title retention agreements, mortgages, deeds of trust, restrictions, developments or similar agreements, easements, rights-of-way, royalties or other burdens on production, title defects or adverse Claims or encumbrances of any kind or character whatsoever including Tax obligations, but excluding any non-material encumbrances that may attach by operation of Law to real property. Any defect in the status of any unpatented mining claim due to the absence of a valid discovery or failure to comply with rules and regulations adopted pursuant to the Mining Law of 1872 shall not be an Encumbrance.
      “Governmental Authorities” means any governments, regulatory authorities, governmental departments, agencies, commissions, bureaus, officials, courts, bodies, boards, tribunals or dispute settlement panels or other Law, rule or regulation-making organizations or entities, in each case, having or purporting to have jurisdiction on behalf of any nation, province, municipality, territory, state or other geographic or political subdivision thereof, or exercising, or entitled or purporting to exercise any administrative, execute, judicial, legislative, policy, regulatory or taxing authority or power.
      “Governmental Authorizations” means authorizations, approvals, certificates, licenses or permits issued to any of the Parties from any Governmental Authority.
      “Laws” means applicable laws, statutes, by-laws, rules, regulations, Orders, ordinances, codes, guidelines, treaties, policies, notices, directions, decrees, judgments or awards.
      “Loss” or “Losses” means all awards, judgments, settlements, interest, penalties, costs, expenses, damages or liabilities, including attorney’s fees and other costs of litigation (either threatened or pending).
      “Material Adverse Change” or “Material Adverse Effect” means with respect to any Person or the Venture, as the case may be in the context in which the definition is used, any change, event, occurrence or effect that is or would reasonably
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be expected to be materially adverse to the business or financial condition or results of operations of such Person or the Venture, in each case, taken as a whole, other than any such change, event, occurrence or effect resulting from (i) the announcement of the execution of this Agreement or the transactions contemplated hereby, (ii) changes, circumstances or conditions generally affecting the industry in which each of Seller and Purchaser operates, which does not affect such Person or the Venture, its operations or financial condition in any disproportionately adverse manner; or (iii) changes in general economic conditions in the United States, which does not affect such Person or the Venture, its operations or financial condition in any disproportionately adverse manner; provided, that with respect to (ii) and (iii) above, in the case where such Person or the Venture is affected disproportionately, such effect will be considered in determining whether a Material Adverse Effect has occurred only to the extent of the amount of the disproportionate portion of the effect.
      “Orders” means orders, injunctions, judgments, decrees, rulings, awards, assessments, directions, instructions, penalties or sanctions issued, filed or imposed by any Governmental Authority.
      “Parties” means Seller and Purchaser, collectively, and “Party” means either one of them.
      “Person” means any individual, group, sole proprietorship, partnership, firm, entity, unincorporated association, unincorporated organization, trust, body corporate, Governmental Authority, and, where the context requires, any of the foregoing when they are acting as trustee, executor, administrator or other legal representative.
      “Post-Effective Date Period” shall have the meaning set forth in Section 7.1 of this Agreement.
      “Tax Returns” means any return, declaration, report, claim for refund or information statement relating to Taxes, and including any amendment thereof.
      “Taxes” means any and all federal, state, local and foreign taxes, assessments and other governmental charges, duties, impositions and liabilities, including taxes based upon or measured by gross receipts, net proceeds, income, profits, sales, use and occupation, and value added, ad valorem, transfer, franchise, withholding, payroll, recapture, employment, excise and property taxes, together with all interest, penalties and additions imposed with respect to such amounts.
     12.2 Certain Rules of Interpretation.
     In this Agreement:
          (a) Headings — Headings of Articles and Sections are inserted for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
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          (b) Including — Where the word “including” or “includes” is used in this Agreement, it means “including (or includes) without limitation”.
          (c) No Strict Construction — The language used in this Agreement is the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Party.
          (d) Number and Gender — Unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing gender include all genders.
          (e) Time — Time is of the essence in the performance of the Parties’ respective obligations.
          (f) References — Unless otherwise specified, any reference herein to an Article, Section, Exhibit or Schedule refers to those of this Agreement.
          (g) Consistency — If there is any inconsistency or conflict between the provisions contained in the body of this Agreement and those of any Schedule or Exhibit hereto, the provisions contained in the body of this Agreement shall prevail.
13. MISCELLANEOUS MATTERS.
     13.1 Succession. Purchaser may assign all or any part of its interest in this Agreement to any of its Affiliates, provided, however, that Purchaser shall continue to be bound by the terms and conditions of this Agreement unless Seller agrees otherwise. Otherwise, except as provided in Section 13.2 below, before the Closing, neither Party shall have the right to assign all or any part of its interest in this Agreement without the prior written consent of the other Party. This Agreement shall be binding upon and shall inure to the benefit of the Parties, their heirs, successors and permitted assigns.
     13.2 Qualified Intermediary Assignment. Notwithstanding any provision in this Agreement, to facilitate a “like-kind” exchange under Section 1031 of the Internal Revenue Code of 1986, as amended (the “Code”), Seller may assign all or any portion of its rights (but not obligations) under this Agreement with respect to sale of the machinery and equipment, including the Purchase Price allocated thereto in Exhibit C, to a qualified intermediary, an exchange accommodation title holder or one or more single member limited liability companies that are owned by any of the foregoing persons (each a “Qualified Intermediary”) in accordance with the provisions of Section 1031 of the Code, the Treasury Regulations thereunder, and IRS Revenue Procedure 2000-37. Purchaser shall cooperate with the Seller as may be reasonably necessary in connection with such assignment and the deferred tax-free exchange to be accomplished in connection therewith, including acknowledging the execution of a written agreement between Seller and the Qualified Intermediary, subject to reimbursement by Seller for actual out-of-pocket expenses incurred by Purchaser as a
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result of a request by Seller in connection with the foregoing; and provided Seller does not incur additional obligations or liability as a result of such cooperation or actions. No assignment of rights under this Agreement, under the foregoing provision, shall effect a release of such party from obligations under this Agreement or impose any additional obligation or liability on the other party.
     13.3 Amendment. This Agreement may only be amended by an instrument in writing executed by Purchaser and Seller.
     13.4 Law of Agreement; Exclusive Jurisdiction . This Agreement shall be interpreted and construed under and in accordance with the law of Nevada applicable to contracts made and to be performed wholly within the State of Nevada, without giving effect to any of the conflicts of law provisions thereunder. Any proceeding brought relating to this Agreement shall be brought only in the applicable state and federal courts located in Reno, Nevada and venue shall only be proper in such courts. Each Party hereto agrees and covenants that it will not raise any claim of inconvenient forum or any similar objection to jurisdiction to such courts.
     13.5 Waiver . Any of the terms or conditions of this Agreement may be waived at any time and from time to time, in writing, by such Parties as are entitled to the benefit of such terms or conditions; provided, however, that except as otherwise specifically provided in this Agreement, no failure or delay on the part of either Party in exercising any of their respective rights hereunder upon any failure by the other Party to perform or observe any condition, covenant or provision herein contained shall operate as a waiver thereof, nor shall any single or partial exercise of any of such rights preclude any other or further exercise thereof or the exercise of any other right hereunder. No waiver or release of any of the terms, conditions or provisions of this Agreement shall be valid or asserted or relied upon by either Party hereto or offered in any judicial proceeding or otherwise, unless the same is in writing, duly executed by both Parties.
     13.6 Notices . All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given (i) when delivered personally, (ii) when received by the addressee, if sent by Federal Express or other generally recognizable express delivery service, or (iii) on the day of transmittal if given by electronic mail (“email”) prior to 5:00 p.m. EST or EDT as may be applicable, on a business day, and on the next following business day if given by email after 5:00 p.m. EST or EDT, as may be applicable, on a business day and on the next business day if given on any day other than a business day at the following addresses (or to such other address for a Party as shall be specified by like notice; provided that notices of a change of address shall be effective only upon receipt thereof). The term “business day” shall mean a business day at the City identified below in the address of the Party to which notice is being given:
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If to Purchaser, to:
Barrick Gold Corporation
136 East South Temple, Suite 1059
Salt Lake City, UT 84111-1180
Attn: Rich Haddock
Email address: rhaddock@barrick.com
With a copy to:
Barrick Gold Corporation
Brookfield Place, Canada Trust Tower
Suite 3700, 161 Bay Street
P.O. Box 212
Toronto, Canada
M5J 2S1
Attn: Patrick Garver
Email address: pgarver@barrick.com
If to Seller, to:
Kennecott Explorations (Australia) Ltd.
2711 Centerville Road, Suite 400
Wilmington, DE 19808
Attn: President
With a copy to:
Kennecott Explorations (Australia) Ltd.
c/o Neville Tiffen, Esq.
224 North 2200 West
Salt Lake City, UT 84116
Email address: Neville.Tiffen@riotinto.com
     13.7 Counterparts. This Agreement may be (but shall not be required to be) executed in counterparts notwithstanding that all Parties are not signatories to the same counterpart. Copies containing the signature of all Parties, whether or not in counterparts, shall be delivered to both Purchaser and Seller. This Agreement may be signed by facsimile signatures, each of which shall be considered an original.
     13.8 Severability. In the event that any one or more of the provisions contained in this Agreement shall be invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions of this Agreement shall not be in any way impaired.
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respect and of the remaining provisions of this Agreement shall not be in any way impaired.
     13.9 Entire Agreement. This Agreement and the Schedules and Exhibits hereto constitute the entire agreement among the Parties hereto with respect to the transactions contemplated by this Agreement, and there are no agreements, understandings, restrictions, warranties or representations among the Parties with respect to the subject matter hereof, other than those herein, or therein, provided for.
     13.10 Specific Performance; Injunctive Relief. Each of the Parties hereto agrees that irreparable damage could occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, the Parties hereto shall be entitled to seek an injunction or injunctions, without the posting of any bond or showing of any cause, to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, including without limitation specifically enforcing the sale of the Purchased Assets and enforcing the assumption of the Assumed Liabilities, this being in addition to any other remedy to which a Party is entitled under Law or in equity, but also subject to the other terms of this Agreement (including the conditions set forth herein). Specific performance shall not be available to a party if the cost, expense or harm is disproportionate to the remedy sought.
     13.11 Election of Remedies; Limitation of Damages. Neither the exercise of, nor the failure to, exercise a right or to give notice of a claim under this Agreement will constitute an election of remedies or limit Purchaser on the one hand, or Seller on the other hand, in any manner in the enforcement of any other remedies that may be available to either of them, whether at law or in equity. No Party hereto shall be liable to another for any consequential, incidental, indirect, special, punitive, exemplary, loss of profits or benefits or similarly based theories of damages except where such damages must be paid to a third party as part of the indemnification obligation hereunder. The rights and remedies provided by this Agreement are cumulative, and the use of any one right or remedy by any Party shall not preclude or waive its right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the Parties may have under Law or otherwise. All the rights and remedies may be exercised and enforced concurrently or whenever occasion for the exercise arises.
     13.12 Performance of Other Party’s Obligations. If any Party fails to perform or observe any of its covenants, agreements or obligations hereunder, in a timely manner after having received notice from the other Party, then the other Party shall have the right, but not the obligation, at its sole election (but not as its exclusive remedy) to perform or observe the covenants, agreements or obligations which are asserted to have not been performed or observed at the expense of the failing Party and to recover all costs or expenses incurred in connection therewith.
[Remainder of page intentionally left blank. Signature page follows.]
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     IN WITNESS WHEREOF, the Parties have signed this Agreement on the date first above written.
 	 	 	 	 	 	 	
 	 	PURCHASER:	 	 	
 	 	 	 	 	 	 	
 	 	/s/ Darren Blasutti	 	 	
 	 	 	 	 	
 	 	Darren Blasutti, SVP Corporate Development	 	 	
 	 	 	 	 	 	 	
 	 	By	 	/s/ Catherine J. Boggs	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Title: Vice President, Corp Development	 	 	
 	 	 	 	 	 	 	
 	 	SELLER:	 	 	
 	 	 	 	 	 	 	
 	 	KENNECOTT EXPLORATIONS	 	 	
 	 	 	 	(AUSTRALIA) LTD.,	 	 	
 	 	 	 	a Delaware corporation	 	 	
 	 	 	 	 	 	 	
 	 	By	 	/s/ Kay Priestly	 	 	
 	 	 	 	 	 	 	
 	 	 	 	Title: Authorized Agent	 	 	
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EXHIBITS
 	 	 	 	 	
Section 2.2	 	Exhibit A	 	Assumption Agreement	
 	 	 	 	 	
Section 2.3	 	Exhibit B	 	Royalty Deed	
 	 	 	 	 	
Section 2.4	 	Exhibit C	 	Allocation Schedule	
 	 	 	 	 	
Section 5.5	 	Exhibit D	 	Seller’s Release	
 	 	 	 	 	
Section 5.5	 	Exhibit E	 	Purchaser’s Release	
 	 	 	 	 	
Section 7.3 (a)	 	Exhibit F	 	Seller’s Assignment of Venture Interest	
 	 	 	 	 	
Section 7.3(b)	 	Exhibit G	 	Seller’s Quitclaim Deed for Real Property	
 	 	 	 	 	
Section 7.3(c)	 	Exhibit H	 	Seller’s Assignment of Mining Leases and Agreements	
 	 	 	 	 	
Section 7.3(d)	 	Exhibit I	 	Seller’s Quitclaim Deed for Water Rights	
 	 	 	 	 	
Section 7.3 (e)	 	Exhibit J	 	Seller’s Assignment of Easements	
 	 	 	 	 	
Section 7.3(f)	 	Exhibit K	 	Seller’s Assignment of Environmental Permits	
 	 	 	 	 	
Section 7.3(g)	 	Exhibit L	 	Seller’s Bill of Sale for Personal Property	
 	 	 	 	 	
Section 7.3(h)	 	Exhibit M	 	Seller’s Assignment of Royalty Interests	
 	 	 	 	 	
Section 9.5	 	Exhibit N	 	Seller’s Guaranty	
 	 	 	 	 	
Section 9.5	 	Exhibit O	 	Purchaser’s Guaranty	
 	 	 	 	 	
Section 2.3	 	Exhibit P	 	Area of Interest	
 	 	 	 	 	
Section 3.12	 	Exhibit R	 	Tax Audits	
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Exhibit A
ASSUMPTION AGREEMENT
     This Assumption Agreement (this “Assumption”) is entered into effective as of _____, 2008 by and between Barrick Gold Finance, Inc. (“Purchaser”) and Kennecott Explorations (Australia) Ltd. (“Seller”).
RECITALS:
     WHEREAS, Seller and Barrick Cortez, Inc., a Delaware corporation (“ BCI ”), are parties to that certain Amended and Restated Mining Venture Agreement dated as of October 29, 1999, and effective as of January 1, 1998, by and among Placer Cortez Inc. (“ PCI ”), Placer Dome U.S. Inc. (“ PDUS ”) and Seller (hereinafter referred to as the “Joint Venture Agreement”) , which Joint Venture Agreement governs the joint ownership of and conduct of operations on the property encompassed by the Area of Interest (as such term is defined in the Joint Venture Agreement). BCI has succeeded to PCI’s sixty percent (60%) Participating Interest (as such term is defined in the Joint Venture Agreement) and a corresponding undivided sixty percent (60%) interest, as a tenant-in-common, in the Assets (as such term is defined in the Joint Venture Agreement) owned by the Parties pursuant to the terms of the Joint Venture Agreement and has replaced PDUS as the Manager (as such term is defined in the Joint Venture Agreement). The Joint Venture Agreement is now between Seller and BCI. The joint venture between Seller and BCI is known as the “Cortez Joint Venture” . The mines and operations owned and operated pursuant to the terms of the Cortez Joint Venture are referred to collectively herein as the “Cortez Mine” .
     WHEREAS, Seller owns a forty percent (40%) Participating Interest in the Cortez Joint Venture (the “Venture”) and a corresponding forty percent (40%) undivided interest as a tenant-in-common in all of the Assets of the Venture.
     WHEREAS, effective as of the date of this Assumption, Purchaser is purchasing Seller’s 40% Participating Interest in the Cortez Joint Venture, together with all of Seller’s right, title and interest in the Venture’s Assets (other than mineral interests held by Seller that were offered to the Venture pursuant to the terms of the Joint Venture Agreement and rejected by the Venture), and all other related property rights and assets of Seller located within the Area of Interest (excluding the interests of Seller under the Royalty Deed and the Production Royalty reserved under Section 2.3 of the Purchase Agreement) (the “Purchased Assets”), pursuant to the terms of that certain Purchase Agreement, by and between Purchaser and Seller, dated as of February 21, 2008 (the “Purchase Agreement”).
     WHEREAS, pursuant to the provisions of the Purchase Agreement, Purchaser has agreed to assume the obligations of Seller related to the Cortez Mine, the Joint Venture Agreement and the Purchased Assets, as more fully set forth herein.
AGREEMENT:
     NOW, THEREFORE, for and in consideration of the promises and mutual covenants contained herein, and for other good and valuable consideration, the receipt, adequacy and legal sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows:
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      1. Capitalized Terms. Capitalized terms used herein but not defined herein will have the meanings for such terms that are set forth in the Purchase Agreement, or if not defined in the Purchase Agreement, as defined in the Joint Venture Agreement.
      2. Assumption.
          (a) Purchaser hereby assumes all obligations and liabilities of any kind, character or nature whatsoever (whether known or unknown, accrued, absolute, contingent, determined, determinable or otherwise, and whether arising or to be performed prior to, on or after the Closing) of Seller and its Affiliates with respect to the Cortez Venture (collectively, the “Assumed Liabilities”). The Assumed Liabilities shall include, without limitation, any such obligations and liabilities with respect to the following:
               (i) Seller’s ownership of a Participating Interest in the Joint Venture;
               (ii) Seller’s being a party to the Joint Venture Agreement, including funding obligations arising thereunder;
               (iii) Seller’s ownership of an undivided interest in the Venture’s Assets and any other assets included in the Purchased Assets;
               (iv) Operations of the Joint Venture (including developmental, exploration and mining activities) and other operations on or in respect of the Purchased Assets;
               (v) Contracts or other commitments related to Venture Operations or Joint Venture Assets, including royalty contracts and all Seller Obligations;
               (vi) Environmental and reclamation liabilities, obligations or impacts arising from Venture Operations, including the Cortez Mine, or otherwise existing in respect of the Purchased Assets whether on or off of the areas covered thereby including, without limitation, any and all residual liabilities of Seller to the extent that any such liabilities survive a transfer of a Participating Interest pursuant to Section 15.2 of the Joint Venture Agreement, or otherwise;
               (vii) Governmental permits or other authorizations granted in respect of Venture Operations and other undertakings provided in respect thereof, including, without limitation, (A) the Irrevocable Standby Letter of Credit Number SM201472W for approximately $3,500,000 initially issued January 31, 2003 by Wachovia Bank, NA on behalf of Seller for the benefit of the US Department of the Interior, Bureau of Land Management, as amended, and (B) that certain Sale and Purchase Agreement, dated as of October 9, 1991, between, among others, Seller and Vernon Taylor, Jr. (“ Taylor ”), and the following documents related to such agreement with Taylor: the Royalty Agreement, the Assignment of Venture Interests and Acceptance, the Assumption Agreement, and the Guaranty;
               (viii) Any reclamation or other bonds or any other agreement or business arrangement, other than the Joint Venture Agreement, whereby Seller or any of its Affiliates is, or may be, directly or indirectly responsible for liabilities or obligations of the Cortez Venture; and
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               (ix) The interest in the joint venture formed and operated pursuant to that certain Joint Venture Operating Agreement, dated as of March 7, 1983 and amended on June 17, 1993, between Teck Cominco American Incorporated and Purchaser;
               (x) The residual liabilities of Seller, pursuant to Section 15.2 of the Joint Venture Agreement, except to the extent that any such residual liabilities constitute a breach of the Purchase Agreement; and
               (xi) Pending or future litigation or other legal proceedings in respect to any of items (i) through (x) above.
          (b) Notwithstanding anything contained in this Section 2 to the contrary, Purchaser is not assuming and shall not be liable for any of the following obligations or liabilities of Seller or its Affiliates, and each of such obligations and liabilities shall not be Assumed Liabilities under this Agreement:
               (i) any obligation or liability of Seller arising out of the Purchase Agreement or the breach of any representation, warranty or covenant of the Seller under the Purchase Agreement;
               (ii) any liability or obligation, for any federal, state, local or foreign income tax, gross receipts tax, franchise tax or other tax of any kind or nature on the income, receipts or the Products received by Seller from the Venture or resulting from Seller’s ownership of a Participating Interest in the Venture and its Assets (except for any tax customarily paid by the Venture including, without limitation, the Nevada net proceeds tax related to the Venture’s operations which was assumed by Purchaser and any other tax Purchaser has assumed or agreed to pay pursuant to the Purchase Agreement);
               (iii) any obligation or liability of Seller to any Affiliate of Seller;
               (iv) any obligation or liability of Seller or any of its Affiliates related to any Products of the Venture after distribution of such Product, or the proceeds of the sale thereof, to Seller;
               (v) any obligation of Seller arising from the fraud of Seller;
               (vi) any obligation or liability of Seller or any of its Affiliates for indebtedness for borrowed money or for other debts, liabilities or Losses that are the sole obligation of Seller or any of its Affiliates and not a Venture obligation, even if such indebtedness or liability was created to fund a Venture obligation (except for obligations under 2(a)(viii) above which do not constitute a breach of the Purchase Agreement); and
               (vii) any obligation or liability of Seller, of whatever kind or nature, incurred directly by Seller for its own account (except for obligations under 2(a)(viii) above which do not constitute a breach of the Purchase Agreement).
      3. Indemnification. Purchaser agrees to indemnify and hold the Seller harmless from all Losses incurred by Seller from any of the following:
          (a) Seller being made a party to any litigation, Claims or legal proceedings which relate to an obligation or liability which has been assumed by Purchaser hereunder; or
 3 

 

          (b) Purchaser’s failure to fulfill or complete any obligation or liability assumed by Purchaser hereunder.
Each of the parties to this Assumption agrees to be bound by the procedural and related indemnification provisions set forth in Sections 9.3 and 9.4 of the Purchase Agreement. The provisions of this Section 3 are in addition to, and not limitation of, Article IX of the Purchase Agreement.
      4. CERCLA Waiver. Purchaser and its successors and assigns hereby waive, and unconditionally release Seller from, any rights and remedies that Purchaser and its successors and assigns may otherwise have against Seller under any Environmental Law, including, without
limitation, any claims for contribution under CERCLA or common law. For purposes of this Agreement, (A) “Environmental Laws” means any foreign, federal, state or local law (including common law), statute, ordinance, rule, regulation or contractual obligation governing pollution, the environment or protection of human health or safety, as currently in effect or as may be enacted or amended hereafter. Without limiting the generality of the foregoing, “Environmental Laws” include: (i) the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq ., as amended; (ii) CERCLA; (iii) the Superfund Amendment and Reauthorization Act of 1984, as amended; (iv) the Clean Air Act, 42 U.S.C. § 7401 et seq ., as amended; (v) the Clean Water Act, 33 U.S.C. § 1251 et seq ; (vi) the Safe Drinking Water Act, 42 U.S.C. § 300f et seq .; and (vii) the Occupational Safety and Health Act of 1976, 29 U.S.C. § 651, as amended, and all rules and regulations promulgated thereunder; and (B) “ CERCLA ” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 26 U.S.C. § 4611 and 42 U.S.C. § 9601 et seq ., as amended.
      5. Terms of the Purchase Agreement. The provisions of the Purchase Agreement are incorporated herein by this reference. Seller acknowledges and agrees that the terms of this Assumption do not limit the provisions of the Purchase Agreement, including, without limitation, Seller’s representations, warranties, covenants, agreements and indemnities contained therein, and that the provisions of the Purchase Agreement are not superseded hereby but remain in full force and effect to the full extent provided therein.
[remainder of page intentionally left blank; signature page follows]
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      IN WITNESS WHEREOF, the parties have executed this Assumption Agreement as of the date first above written.
 	 	 	
SELLER :	 	PURCHASER :	
 	 	 	
Kennecott Explorations (Australia) Ltd.	 	Barrick Gold Finance, Inc.	
 	 	 	
By:                                                               	 	 	
Name:                                                               	 	By:                                                               	
Title:                                                               	 	Name:                                                               	
 	 	Title:                                                               	
 5 

 

Exhibit B
Form of Royalty Reservation
WHEN RECORDED, RETURN TO:
                     , Esq.
Rio Tinto Legal
224 North 2200 West
Salt Lake City, UT 84116
Tel: 801 238 2400
RIO TINTO PRODUCTION ROYALTY DEED
     FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which are hereby expressly acknowledged, by this Rio Tinto Production Royalty Deed (the “Rio Tinto Royalty Deed”), Kennecott Explorations (Australia) Ltd., a Delaware corporation (hereinafter referred to as “Royalty Holder”), hereby reserves to itself, its successors and assigns, from the transfers of interest to Barrick Gold Finance, Inc., a Delaware corporation (which, together with its transferees, successors and assigns, is hereinafter referred to as “Barrick”) made pursuant to the Purchase Agreement (as defined below), and certain deeds, assignments and assumptions pursuant to the Purchase Agreement, each of even date herewith, a certain “Production Royalty” as hereinafter defined and computed, with respect to the “Property” as defined below. The parties hereto are referred to individually as a “Party” and collectively as the “Parties”.
     The Royalties described in this Rio Tinto Royalty Deed are reserved pursuant to that certain Purchase Agreement, dated February 21, 2008 (the “Purchase Agreement”) by which the Royalty Holder transferred all its rights, titles and interests in the Cortez Joint Venture, as defined in the Purchase Agreement, including its undivided 40% participating interest, other than the Royalty herein described and is subject to the terms and conditions of the Purchase Agreement. The Royalty herein applies to all production of Refined Gold and Refined Silver for the account of Barrick from the Property. Accordingly, there is reserved by Royalty Holder from the conveyance of Royalty Holder’s 40% undivided interest as a tenant in common in the Property made in this Rio Tinto Royalty Deed a Production Royalty in favor of and payable to Royalty Holder as follows.
1. Definition of Production Royalty. The production royalty means the royalty reserved by Royalty Holder pursuant to this Rio Tinto Royalty Deed, out of the 40% undivided tenancy in common interest transferred to Barrick pursuant to the Purchase Agreement, which shall be a percentage of the Returns realized with respect to Refined Gold and Refined Silver delivered with respect to such 40% undivided tenancy in
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common interest from and after the Commencement Date. The percentages of such royalty shall be determined upon Returns realized from Refined Gold and Refined Silver in accordance with the following schedule:
 	 	 	 	 	
Monthly Average Gold Price	 	 	
     for Applicable Month	 	Percentage Royalty	
Less than $400	 	 	0	%	
$400 and up to but not including $500	 	 	0.5	%	
$500 and up to but not including $600	 	 	1.0	%	
$600 and up to but not including $700	 	 	1.5	%	
$700 and up to but not including $800	 	 	2.0	%	
$800 and up to but not including $900	 	 	2.5	%	
Greater than $900	 	 	3.0	%	
As an example of the foregoing, if 100 ounces of Refined Gold are delivered from a refinery from all operations on the Property (regardless of ownership), and if the monthly average gold price is then $1000 per ounce, then the Production Royalty payable under this Rio Tinto Royalty Deed (without taking into account any Allowable Deductions), would be 3% of the product of 40 ounces of Refined Gold attributed to Barrick’s undivided 40% interest (40% of 100 ounces) multiplied by $1,000, or $1,200.
2. Definitions. Additional terms governing the determination and payment of the Production Royalty are as follows:
A. Property means all interests held as of the date hereof by Barrick in the Cortez Joint Venture properties, including without limitation, the undivided 40% interest held in the following:
     (1) the patented and unpatented mining claims and millsites and fee land identified on Exhibit A-1 attached hereto;
     (2) the leased areas covered by the leases identified on Exhibit A-2 attached hereto (the “Leases” ), subject to the provisions of such leases;
     (3) the joint venture agreements identified on Exhibit A-3 attached hereto (the “Joint Venture Agreements”) as to which the Cortez Joint Venture holds, or has the right to acquire, a participating interest, subject to the provisions of such joint venture agreements;
     For greater certainty, the term “Property” does not include any properties within the “Area of Interest” (as such term is defined in the Cortez Joint Venture) in which, as of the date of this Rio Tinto Royalty Deed, neither Barrick nor any of its Affiliates hold any mining claims or other real property interest or the right to acquire the same.
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B. Refined Gold means gold recovered after the treatment of ores mined from the Property that has been refined to meet or exceed generally accepted commercial standards for the “good delivery” of gold bullion on the U.S. or London commodity exchanges. If only a portion of the gold mined from any part of the Property is delivered to the Cortez Joint Venture as a participant in a Joint Venture Agreement, only the refined gold that is attributable to such portion shall be considered to be Refined Gold for purposes of determining the Royalty.
C. Refined Silver means silver that is recovered after the treatment of ores mined from the Property that has been refined to meet or exceed generally accepted commercial standards for the “good delivery” of silver bullion on the U.S. or London commodity exchanges. If only a portion of the silver mined from any part of the Property is delivered to the Cortez Joint Venture as a participant in a Joint Venture Agreement, only the refined silver that is attributable to such portion shall be considered to be Refined Silver for purposes of determining the Royalty.
D. Gold Production means for a calendar month the number of troy ounces of Refined Gold delivered by a refinery attributable to Barrick’s 40% undivided interest as a tenant in common in the Property and delivered to, or for the account of Barrick (or to any Affiliate of Barrick to be allocated to Barrick) during that month.
E. Silver Production means for a calendar month the number of troy ounces of Refined Silver delivered by a refinery attributable to Barrick’s 40% undivided interest as a tenant in common in the Property and delivered to, or for the account of Barrick (or to any Affiliate of Barrick to be allocated to Barrick) during that month.
F. Monthly Average Gold Price means the average London Bullion Market Association P.M. Gold Fix in U.S. Dollars for a calendar month, calculated by dividing the sum of all such prices reported for the applicable month by the number of days for which such prices were reported, in each case as shown in the Financial Times or other similar publication, but corrected to the actual London Bullion Market Association price in the case of errors. If the London Bullion Market Association P.M. Gold Fix ceases to be made or published, all such references shall be replaced with references to prices of gold for immediate delivery in the most nearly comparable established market selected by Barrick, acting reasonably, as such prices are published in “Metals Week” or a similar publication.
G. Monthly Average Silver Price means the average London Bullion Market Association daily price fixing for silver in U.S. Dollars for a calendar month, calculated by dividing the sum of all such prices reported for the applicable month by the number of days for which such prices were reported, as reported in the Financial Times or other similar publication, but corrected to the actual London Bullion Market Association price in the case of errors. If the London Bullion Market Association daily price fixing for silver ceases to be made or published, all such references shall be replaced with references to prices of silver for immediate delivery in the most nearly comparable established market selected by Barrick, acting reasonably, as such prices are published in “Metals Week” or a similar publication.
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H. Gross Value of Refined Gold for a calendar month means the Gold Production for such month multiplied by the Monthly Average Gold Price for that month.
I. Gross Value of Refined Silver for a calendar month means the Silver Production for such month multiplied by the Monthly Average Silver Price for that month.
J. Allowable Deductions means the pro rata portion of royalties as currently exist that are payable to lessors under the Leases or to other parties in respect of production from the Property with respect to the undivided 40% interest of Barrick in the Property. Provided, however, that such deduction shall not continue to apply in respect of any such royalty that Barrick buys out or buys down.
K. Returns means the sum of (i) the Gross Value of Refined Gold and (ii) of the Gross Value of Refined Silver for a calendar month; less Allowable Deductions.
L. Commencement Date means the date when the number of troy ounces of Refined Gold and gold equivalent of Refined Silver delivered after January 1, 2008, from the Property to Barrick and all other Affiliates of Barrick (and not just with respect to the undivided 40% interest held by Barrick) total fifteen (15) million ounces. Gold equivalent of Refined Silver shall be determined by determining the Gross Value of Refined Silver delivered to Barrick and all other Affiliates of Barrick during each month after January 1, 2008 and dividing such amount by the Monthly Average Gold Price for such month. The number so determined shall then be added to the number of ounces of Refined Gold delivered in such month for purposes of determining the Commencement Date.
M. Affiliate means, with respect to any person or entity, any other person or entity that directly or indirectly controls, is controlled by, or is under common control with such person or entity. For purposes of the preceding sentence, “control” means possession, directly or indirectly, of the power to direct or cause direction of management and policies through ownership of voting securities, contract, voting trust, or otherwise.
N. Ounces means troy ounces.
O. Trading Activities means any and all price hedging and price protection activities undertaken by Barrick or its Affiliates with respect to any production from the Property, raw materials, interest rates or currency exchanges including without limitation, any forward sale and/or purchase contracts, spot-deferred contracts, option contracts, speculative purchases and sales of forward, futures and option contracts, both on and off commodity exchanges.
3. Negation of Trading Activities. Trading Activities, and the profits and losses generated thereby, shall not, in any manner, be taken into account in the calculation of royalties due to Royalty Holder, whether in connection with the determination of price, the date of sale, or the date any royalty payment is due. The Royalty Holder acknowledges that Barrick and its Affiliates engaging in Trading Activities may result in
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Barrick and its Affiliates realizing from time to time fewer or more profits for Products than does Royalty Holder, since Royalty Holder’s Production Royalty is established by published prices. Similarly, Royalty Holder shall not be obligated to share in any losses generated by any such Trading Activities with respect to the sales of any product covered by this Rio Tinto Royalty Deed, or otherwise.
4. Obligation to Refine. Barrick shall cause gold and silver obtained from ores mined from the Property to be refined to Refined Gold and Refined Silver on an arm’s length basis from reputable independent first class refineries such as Johnson Mathey, or other similar first class refineries. Should any gold or silver ore be required to be processed at any facility of Barrick or its Affiliates outside of the Property in order to produce a product that can be shipped to a refinery to produce Refined Gold and Refined Silver, such processing will be done on arm’s length terms that are no less advantageous to Barrick as to any other Barrick Affiliate using such facilities. Barrick shall at all times be responsible for tracking and accounting for such gold and silver through delivery of Refined Gold and Refined Silver from the refinery for purposes of the determining the Royalty Commencement Date and the Royalty. In the event any gold or silver ore or any intermediate products are lost after transport off of the Property (other than through normal processing loss), then the amount of the ounces of gold and silver in such lost material shall be included as the Gross Value of Refined Gold or the Gross Value of Refined Silver, as the case may be.
5. Calculation and Payment of Royalty.
A. Prior to Commencement Date. Prior to the Commencement Date, Barrick shall provide statements in reasonable detail by each February 1 showing the quantity of Refined Gold (including gold equivalent of Refined Silver) that has been delivered to Barrick and to each other Affiliate of Barrick during the prior calendar year and the cumulative quantity of Refined Gold (including gold equivalent of Refined Silver) that has been so delivered since the Effective Date. Barrick shall promptly give notice to Royalty Holder when the Commencement Date has occurred.
B. Production Royalty After Commencement Date. Beginning on the Commencement Date the Production Royalty shall be computed and accrued on a monthly basis and shall be paid on a quarterly basis within 45 days after the end of each calendar quarter. Production Royalty payments shall be accompanied by a statement in reasonable detail sufficient to allow Royalty Holder to determine the method of computation of each Production Royalty payment and the accuracy thereof.
C. Method of Making Payments. All payments of money required to be made by Barrick to Royalty Holder hereunder shall be made by wire transfer in immediately available funds to Royalty Holder on or before the due date at an account designated by Royalty Holder. Upon making payment as provided herein, Barrick shall be relieved of any responsibility for the distribution of such payment among Royalty Holder and any of its successors and assigns.
 5 

 

6. Accounting Principles.
A. Standards. Barrick shall maintain, or cause to be maintained, true and correct records in accordance with GAAP of all ores mined from the Property and the amounts of gold and silver recovered therefrom and converted to Refined Gold and Refined Silver and any intermediate treatment, including without limitation, records with respect to tonnage, volume of products, analyses of products, weight, moisture, assays of payable metal content and other records, as appropriate. All royalty calculations affecting the Production Royalty shall be determined in accordance with GAAP as applied by Barrick.
B. Audit. Royalty Holder shall have the right to audit such records at Barrick’s office, or at such other office where such records are kept, during normal business hours upon reasonable prior notice, provided such audit is conducted by Royalty Holder or by an accounting firm of recognized standing, at least one of whose members is a member of the American Institute of Certified Public Accountants. Royalty Holder shall make available all books and records, refinery statements, and other invoices, receipts and records necessary for purposes of such audit, and shall make available work space and copying facilities, or permit Royalty Holder’s representatives to install copying facilities for use in connection with its audit activities.
C. Disputes. The Royalty Holder shall be deemed to have waived any right it may have had to object to a payment made for any calendar quarter, unless it provides notice in writing of such objection within twenty four (24) months after receipt of final payment for the calendar quarter.
D. Dispute Resolution.
     (1) The Parties will attempt in good faith to resolve promptly any claim or controversy arising out of or relating to any dispute arising under this Rio Tinto Royalty Deed. It is understood that such negotiations shall be deemed to be settlement discussions for purposes of any future proceeding.
     (2) In the event that (i) any dispute arising out of or relating to this Rio Tinto Royalty Deed or its breach, termination or validity has not been resolved after good faith negotiation pursuant to the above procedures within thirty (30) days following either Party delivering notice of such dispute to the other party hereto, and (ii) if such dispute involves (x) monetary claims in an amount of $2,000,000 or less or (y) any other matter arising under this Rio Tinto Royalty Deed, or if both Parties consent in writing to the resolution of any other matter by Arbitration, then and only then shall such claim, controversy or dispute, upon written notice by either Party to the other, be finally settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with the rules then pertaining, as modified below:
          (a) The arbitration shall be heard by a panel of three (3) independent and impartial arbitrators all of whom shall be selected from a list of neutral arbitrators supplied by the AAA with experience in the hard rock mining field. From
 6 

 

such list, each Party shall select one (1) arbitrator, and the arbitrators so selected shall select a third. The panel shall designate one (1) among them to serve as chair.
          (b) The arbitration proceedings shall be conducted in the city of Reno, Nevada.
          (c) Any Party may seek interim or provisional remedies under the Federal Rules of Civil Procedure and the United States Federal Arbitration Act as necessary to protect the rights or property of the party pending the decision of the arbitrators.
          (d) The Parties shall allow and participate in limited discovery for the production of documents and taking of depositions, which shall be conducted in accordance with the rules of AAA Arbitration. All discovery shall be completed within sixty (60) days following the filing of the answer or other responsive pleading. Unresolved discovery disputes shall be brought to the attention of the chair of the arbitration panel and may be disposed of by the chair.
          (e) Each Party shall have up to fifty (50) hours to present evidence and argument in a hearing before the panel of arbitrators, provided that the chair of the panel of arbitrators may establish such longer times for presentations as the chair deems appropriate.
          (f) The arbitration award shall be rendered by the arbitrators within fifteen (15) business days after conclusion of the hearing of the matter, shall be in writing and shall specify the factual and legal basis for the award.
          (g) The arbitrators are empowered to order money damages in compensation for a Party’s actual damages, specific performance or other appropriate relief to cure a breach; provided, however, that the arbitrators will have no authority to award special, punitive, exemplary, consequential or liquidated damages, loss of profits or any other money damages that are not measured by the prevailing Party’s actual damages.
          (h) Any judgment upon the award rendered by the arbitration may be entered in any court of competent jurisdiction and shall be deemed to be a final and non-appealable order.
     (3) For any claim, controversy or dispute not specifically described in Subsection D(1) or Subsection D(2) above that is not resolved as provided above, such claim, controversy or dispute shall not be subject to resolution by arbitration absent the prior consent of each Party to the same and shall be subject to resolution by litigation. Each of the Parties hereby agrees that if either it or any of its Affiliates commences any litigation against any other Party or its Affiliates arising under or relating to this Rio Tinto Royalty Deed then the following shall apply:
 7 

 

     (a) Under all circumstances, any litigation shall be instituted only in a court of competent jurisdiction, whether state or federal, located within the city of Reno, Nevada.
     (b) If any such litigation is commenced, each Party and its Affiliates irrevocably consents and submits to personal jurisdiction of any such court and to the service of process upon them in accordance with the rules or statutes governing service of process; provided that nothing in this Subsection shall be deemed to prevent either Party from seeking to remove any action to federal court in Reno, Nevada; and
     (c) Each Party and its Affiliates waive to the full extent permitted by law (i) the right to trial by jury, (ii) any objection that it may now or hereafter have to venue in any such litigation in a court of competent jurisdiction, whether state or federal, in Reno, Nevada, and (iii) any claim that any such litigation has been brought in an inconvenient forum.
     (4) Each Party is required to continue to perform its obligations under this Agreement pending final resolution of any dispute arising out of or relating to this Agreement, unless to do so would be commercially impossible under the circumstances.
7. General.
A. Right to Inspect. The Royalty Holder or its authorized representative during normal business hours upon reasonable prior notice and not more frequently than twice annually, may inspect and copy all records and data directly pertaining to the computation of its interest and valuation at the office where such records are kept, including without limitation such records and data which are maintained electronically. The Royalty Holder or its authorized representative on reasonable notice to Barrick may enter upon all surface and subsurface portions of the Property for the purpose of inspection the Property, all improvements thereto and operations thereon for the limited purpose of verifying procedures directly related to computation of the Production Royalty and only to the extent and at such frequency as is reasonably necessary to achieve such verification. Royalty Holder shall enter such property at the Royalty Holder’s own risk and may not unreasonably hinder operations on or pertaining to the Property. The Royalty Holder shall indemnify and hold harmless Barrick and its Affiliates (including without limitation direct and indirect parent companies), and its or their respective directors, officers, shareholders, employees, agents and attorneys, from and against any liabilities which may be imposed upon, asserted against or incurred by any of them by reason of injury to the Royalty Holder or any of its agents or representatives caused by the Royalty Holder’s exercise of its rights herein on such property.
B. No Development Covenants. Barrick shall have no obligation to mine, to continue mining, or to mine any particular quantities of gold-bearing or silver-bearing ores from the Property or to recover gold or silver therefrom in respect of the Royalty. Barrick’s only obligation is to pay the Royalty to Royalty Holder on any gold or silver
 8 

 

that is recovered from ores mined from the Property subject to the terms and conditions in this Rio Tinto Royalty Deed. Royalty Holder’s interest in the Property shall be solely that of a non-participating royalty holder and it shall have no rights to participate or influence management or decision-making regarding operations on the Property. Royalty Holder expressly disclaims any implied covenants of diligence with respect to operations on the Property, including without limitation all exploration, development, mining, and processing operations.
C. Interest in Real Property. The Royalty interest provided in this Rio Tinto Royalty Deed shall attach to (i) any amendments, relocations, adjustments, resurvey, additional locations of any existing mining claims or conversions of any mining claims comprising the Property, and any extralateral rights claimed by Barrick pertaining to any interests within the Property, and (ii) to any renewal, amendment or other modification or extensions of any leases of any real property interests now existing or hereafter arising comprising the Property. The Royalty interest is a real property interest that runs with the Property, is perpetual, and shall be applicable to Barrick and its transferees, successors and assigns of the Property; provided, however, that the Royalty shall not be applicable to any lands subject to a joint venture agreement as to which the Cortez Joint Venture has no further participating interest. Barrick acknowledges that the Royalty Holder will record this Rio Tinto Royalty Deed, the costs of which shall be borne by Royalty Holder.
D. Confidentiality. Except as provided in Subsection 7D(1), all information and data provided to the Royalty Holder under the terms of this Rio Tinto Royalty Deed shall not be disclosed by the Royalty Holder to any third party or the public without the prior written consent of Barrick, which consent shall not be unreasonably withheld.
     (1) The consent required by this Section shall not apply to a disclosure:
     (a) By a Royalty Holder to a potential successor of all or any significant portion of its interests under this Rio Tinto Royalty Deed, or to a potential successor by consolidation or merger, or to a proposed joint venture or partnership in which such Royalty Holder may become a participating partner or venturer;
     (b) To an Affiliate or representative that has a bona fide need to be informed (but subject to the obligations of confidentiality herein);
     (c) To a governmental agency or to the public which the disclosing Party believes in good faith is required by applicable laws or the rules of any stock exchange;
     (d) Made in connection with litigation or arbitration involving a Party where such disclosure is required by the applicable tribunal or is, on the advice of counsel for such Party, necessary for the prosecution of the case, but subject to prior notification to the other Party to enable such Party to seek appropriate protective orders.
 9 

 

     (2) Prior to any disclosure described in Subsections 7D(1)(a) or (b) above, such third party shall first agree to protect the confidential information from further disclosure to the same extent as the Parties are obligated under this Section 7D.
E. Commingling. Barrick shall have the right to commingle ore mined from the Property or intermediate products derived after the treatment thereof with ores or intermediate products from lands other than the Property after such ores or products have been weighed or measured, sampled and analyzed in accordance with sound mining and metallurgical practices such that Royalty Holder’s Royalty can be reasonably and accurately determined. Upon request to Barrick, and at Royalty Holder’s expense, Royalty Holder shall have the right to have a representative present at the time all such samples and measurements are taken. Royalty Holder’s representative shall have the right to secure sample splits for the purpose of confirming the accuracy of all measurements. If Royalty Holder’s assay results differ from Barrick’s, Barrick shall perform a check assay. Any remaining disputes concerning assays, or other disputes concerning commingling procedures or results, shall be subject to arbitration as provided in Section 6D hereof.
F. Transfers.
     (1)  Right of First Offer. Royalty Holder shall not assign or otherwise sell all or any portion of its Royalty interest or its rights established herein as to the Royalty unless Royalty Holder first offers to sell the interest to be assigned or otherwise transferred (the “Offered Interest”) to Barrick as provided in this Section 7F(1). Within thirty (30) days of receipt of such offer, Barrick shall deliver to Royalty Holder the proposed terms of sale of the Offered Interest which shall provide for a price payable in cash in U.S. currency. The said delivery shall constitute an offer by Barrick to purchase the Offered Interest at the price and upon the terms set out in the offer. The Royalty Holder shall have 30 days after receipt of the offer within which to deliver written notice to Barrick of its acceptance or rejection of the offer. If Royalty Holder delivers written notice accepting the offer within the period provided, both parties shall be bound by the terms thereof. If Royalty Holder fails to deliver such acceptance notice within the period provided, the offer shall be deemed not to have been accepted by Royalty Holder. If the Royalty Holder does not deliver the acceptance notice within such period, Royalty Holder may sell the Offered Interest to any other third party upon terms that are no less favorable to Royalty Holder than the terms set forth in the offer from Barrick. If Royalty Holder does not close the transaction within 180 days after expiration of the 30-day acceptance or rejection period referred to above, then Royalty Holder shall once again be obligated to comply with the provisions of this Section prior to selling the Offered Interest. Provided, however, that nothing in the foregoing shall be deemed to apply to any pledge or assignment of the Royalty Interest as collateral in connection with any financing by the Royalty Holder by a non-Affiliate third party.
     (2)  Notice of Transfer. No assignment or other transfer of all or any portion of Royalty Holder’s Royalty interest or its rights established herein as to the Royalty shall
 10 

 

be binding upon Barrick, regardless of whether Barrick has actual or constructive knowledge of the change of ownership, until the date upon which Barrick has received from the transferee a certified copy of the instrument or instruments of transfer satisfactory, in the opinion of Barrick acting reasonably to evidence the change of ownership and to establish the right, title, or interest of the claiming party and the extent thereof.
     (3)  Transfer Conditions. No change or division in the ownership of the Production Royalty, however accomplished, shall enlarge the obligations or diminish the rights of Barrick. Royalty Holder covenants that any change in ownership of the Production Royalty shall be accomplished in such a manner that Barrick shall be required to make payments and give notice to no more than one Person, and upon breach of this covenant, Barrick and its Affiliates may retain all payments otherwise due in escrow until the breach has been cured. No change or division in the ownership of the Royalties shall be binding on Barrick until a certified copy of the recorded instrument evidencing the change or division in ownership has been received by Barrick.
     (4)  Assignment by Barrick. Subject always to this Rio Tinto Royalty Deed, if Barrick transfers all or any portion of its interest in the Property, upon obtaining from the transferee a written assumption of the obligations of Barrick pursuant to this Rio Tinto Royalty Deed with respect to the interest so transferred, Barrick shall thereupon be relieved of all liability for payment of Royalties under this Rio Tinto Royalty Deed for any Royalties that may thereafter arise with respect to such transferred interest, so long as the Royalty established hereby remains a real property interest running with the Property and the effect of which is not thereby threatened. Barrick shall not be relieved of any accrued Royalties unpaid at the time of the transfer.
G. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given (i) when delivered personally, (ii) when received by the addressee, if sent by Federal Express or other generally recognizable express delivery service, (iii) five business days after being sent by certified mail, return receipt requested, or (iv) on the day of transmittal if given by electronic mail (“email”) prior to 5:00 p.m. EST or EDT as may be applicable, on a business day, and on the next following business day if given by email after 5:00 p.m. EST or EDT, as may be applicable, on a business day and on the next business day if given on any day other than a business day at the following addresses (or to such other address for a Party as shall be specified by like notice; provided that notices of a change of address shall be effective only upon receipt thereof). The term “business day” shall mean a business day at the City identified below in the address of the Party to which notice is being given:
If to Barrick, to:

                                         
                                         
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Email address:                                          
If to Royalty Holder, to:

                                         
Email address:                                          
A party may change its address by notice to the other party.
H. Governing Law. The provisions hereof regarding the Royalty shall be interpreted and enforced in accordance with the internal laws of the State of Nevada, excluding any conflict of law principles that would require the application of the laws of any other jurisdiction.
I. Amendment and Waiver. This Rio Tinto Royalty Deed may only be amended by an instrument in writing signed by the Parties hereto. Any term or provision of this Agreement may be waived at any time by the Party or Parties entitled to the benefits thereof but (a) no such waiver shall be effective unless in writing and signed by the Party claimed to have made such waiver, and (b) no waiver of any term, provision or breach of this Rio Tinto Royalty Deed shall operate or be construed as a waiver of the same or any other term or provision, or any other breach of this Rio Tinto Royalty Deed, on any other occasion.
J. Severability. In case any one or more of the provisions contained in this Rio Tinto Royalty Deed shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not effect any other provision hereof, and this Rio Tinto Royalty Deed shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
K. Limitation of Damages. No Party shall be liable to the other hereunder for special, punitive, exemplary, consequential or liquidated damages, loss of profits or any other monetary damages that are not measured by the prevailing Party’s actual damages.
      IN WITNESS WHEREOF, Barrick and the Royalty Holder have executed this Rio Tinto Royalty Deed on [ • ], 2008.
 	 	 	 	 	 	 	 	 	 	 	
BARRICK:	 	 	 	ROYALTY HOLDER:	 	 	
 	 	 	 	 	 	 	 	 	 	 	
[BARRICK GOLD FINANCE, INC.	 	 	 	KENNECOTT EXPLORATIONS	 	 	
 	 	 	 	 	 	(AUSTRALIA) LTD.	 	 	
By:	 	 	 	 	 	By:	 	 	 	 	
Name:	 	 	 	 	 	Name:	 	 	 	 	
Title:	 	 	 	 	 	Title:	 	 	 	 	
 12 

 

 	 	 	 	 	 	 	
STATE OF                                          	 	) 	 	 	
 	 	    ) ss.	 	 	
COUNTY OF                     	 	     )	 	 	 	 	
      On this, the                       day of                                               , 20___, before me, the undersigned Notary Public, personally appeared
                                        , the                                                                    of                                              , a                                              company, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged that he/she executed the same on behalf of Barrick for the purposes therein contained.
     IN WITNESS WHEREOF, I hereunto set my hand and official seal.

Notary Public	 	 	
My commission expires:	 	 	
 	 	 	 	 	 	 	
STATE OF                                             	 	          )	 	 	 	 	
 	 	       ) ss.	 	 	
COUNTY OF                     	 	          )	 	 	 	 	
     On this, the           day of                       , 20 ___, before me, the undersigned Notary Public, personally appeared                                       , the                                              of                                              , a                       company, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged that he/she executed the same on behalf of the Royalty Holder for the purposes therein contained.
     IN WITNESS WHEREOF, I hereunto set my hand and official seal.

Notary Public	 	 	
My commission expires:	 	 	
 13 

 

Exhibit A-1
Patented and Unpatented Mining Claims, Millsites and Fee Lands:
[to be furnished]
 14 

 

Exhibit A-2
Leases
[to be furnished]
 15 

 

Exhibit A-3
Joint Venture Agreements
[to be furnished]
 16 

 

Exhibit C
to
Purchase Agreement
ALLOCATION SCHEDULE
The Tax Purchase Price shall be allocated as follows:
1. Inventory: The fair market value of gold and silver inventory shall be computed by subtracting from the final selling price of the gold and silver produced from the inventory on hand at the Closing Date (or if such data is not available with respect to the Closing Date, the most recent prior date for which such information is available) (“Pricing Date”) the average cost for the month in which the Pricing Date occurs to process said inventory into salable gold and silver.
2. Tangible property other than inventory and Seller’s economic interest in minerals in place: The agreed fair market value of each asset in this category shall be as set forth on the most recent monthly balance sheet available on the Closing Date which has been prepared by the Cortez Joint Venture in a manner consistent with past practice.
3. Seller’s economic interest in minerals in place: The agreed fair market value shall be equal to the Tax Purchase Price minus the portions thereof previously allocated in paragraphs 1 and 2 above.
Of the total amount allocated pursuant to this paragraph 3 to Seller’s economic interest in minerals in place, Purchaser shall prepare and submit to Seller for Seller’s review no later than 20 days after the Closing Date an apportionment of this total amount between Seller’s interest in all fee and leasehold interests (including patented claims) and Seller’s interest in unpatented claims in which Seller has an economic interest in minerals in place. This apportionment shall be made in Purchaser’s reasonable discretion and Seller shall have 10 days to review such apportionment. Following such review, if Purchaser and Seller cannot agree on the apportionment of this item in 15 days, the matter shall be submitted to mediation before a mutually agreed upon accountant experienced in such matters from a major accounting firm.

 

Exhibit D
SELLER’S RELEASE
     THIS SELLER’S RELEASE (the “Release”) is given by Kennecott Explorations (Australia) Ltd. (“Seller”) effective as of the                       day of                                              , 2008.
Background:
     WHEREAS, Seller and Barrick Cortez, Inc. (“BCI”) are parties to that certain Amended and Restated Mining Venture Agreement, effective as of January 1, 1998 (the “Joint Venture Agreement”), which governs the operations of the Joint Venture (the “Joint Venture”).
     WHEREAS, Barrick Gold Finance, Inc. (the “Purchaser”) is purchasing Seller’s 40% interest in the Joint Venture, Seller’s 40% undivided interest in the assets of the Joint Venture and certain other assets, but excluding the interests of Seller under the Royalty Deed and the Production Royalty reserved under Section 2.3 of the Purchase Agreement, (the “Purchased Assets”) pursuant to the terms of that certain Purchase Agreement dated as of the 21 st day of February, 2008 by and between Seller and Purchaser (the “Purchase Agreement”).
     WHEREAS, as a condition to the purchase by Purchaser of the Purchased Assets from Seller, Seller is obligated to execute this Release, which, among other things, releases BCI, the Joint Venture, Purchaser, the Affiliates of BCI and Purchaser, and the predecessors in interest of BCI, as well as the officers, directors, partners, managers, stockholders, employees, agents and representatives of each such entity (each a “Barrick Group Member” and collectively the “Barrick Group”), from claims of the Seller and its Affiliates related to the ownership and operation of the Joint Venture as more fully set forth herein.
     All capitalized terms used herein and not otherwise defined herein shall have the meaning ascribed to them in the Purchase Agreement or, if no such meaning is ascribed in the Purchase Agreement, in the Joint Venture Agreement.
Release:
     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is acknowledged, Seller hereby gives the following release:
      1. Release of Claims.
          (a) In exchange for the considerations stated in the Purchase Agreement, except as provided in Section 1(b) below, the Seller on behalf of itself and its Affiliates (each a “Seller Group Member” and collectively the “Seller Group”), hereby irrevocably, unconditionally and completely releases and discharges each Barrick Group Member of and from, and agrees to indemnify each Barrick Group Member for and hold them harmless against, any and all claims, liabilities, charges, demands, grievances and causes of action of any kind or nature whatsoever whether direct or indirect, liquidated or unliquidated, accrued or unaccrued, known or unknown, which Seller or any other Seller Group Member had, has, may in the future have, or may claim to have against any Barrick Group Member arising out of, connected with, or relating to the Joint Venture (hereinafter, collectively referred to as the “Claim(s)”). Claims released hereunder include, without limitation:
               (i) Claims based on or arising out of actions or omissions of the Manager of the
 Page 1 

 

Joint Venture, or the actions or omissions of any representative of a Barrick Group Member as a member of the Joint Venture’s Management Committee;
               (ii) Claims based on or arising under the Joint Venture Agreement;
               (iii) Claims based on violations of law with respect to the Joint Venture or its operations, assets or conduct;
               (iv) Claims based on or relating to operational and administrative matters with respect to the Joint Venture, the Cortez Mine or the assets and production of the Cortez Mine (including production, budgeting and financial reporting matters); and
               (v) Claims of or based upon membership or ownership in the Joint Venture or ownership with respect to the assets of the Joint Venture or Cortez Mine, rights of audit or to information, benefits, rights to profits or sharing of assets or value, amounts or value of mineral ore, damages, services, lost profits or value, payments or distributions (whether in-kind or in cash), whether direct or indirect.
          (b) Notwithstanding anything contained in this Release to the contrary, the Seller and Seller Group are not releasing the Barrick Group Members from, and will not be required to indemnify the Barrick Group Members for or hold them harmless against, any Claims arising out of or related to any of the following:
               (i) any obligation or liability of Purchaser or its Affiliates arising out of the Purchase Agreement, the Royalty Deed or any document required to be delivered by Purchaser or its Affiliates under the Purchase Agreement, including breach of any representation, warranty or covenant of the Purchaser under the Purchase Agreement;
               (ii) fraud by any Barrick Group Member; and
               (iii) the audit rights set forth in the provisions of the Purchase Agreement.
      2. Full and Complete Release. The Seller understands and agrees that it is releasing and waiving Claim(s) that the Seller and other members of the Seller Group do not know exist or may exist in the Seller Group’s favor at this time which, if known by them, would materially affect Seller’s decision to sign this Release. Nonetheless, for the purpose of implementing a full and complete release and discharge of the Claims, the Seller expressly acknowledges that the release set forth in this Release is intended to include in its effect, without limitation, all Claim(s) which Seller and the other Seller Group Members do not know or suspect to exist in their favor or to their benefit at the time of execution hereof and that the release set forth here contemplates the extinguishment of any such Claim(s).
      3. Not an Admission. This Release does not constitute an admission by any person, and each party specifically denies that it has violated any agreement, contract, law, or regulation or that it has otherwise done any other wrongful act.
      4. Covenant Not to Sue. With respect to the subject matter contained in this Release, the Seller, on behalf of itself and its Affiliates, hereby agrees and covenants that neither Seller nor any of Seller’s Affiliates shall bring suit, or commence any other legal proceeding at law or in equity, seeking to recover any amounts or bring any action relating to the matters released herein.
 Page 2 

 

      5. Miscellaneous. This Release represents the entire agreement between the parties with respect to the subject matter contained herein, except as otherwise specifically set forth or referred to herein, or as set forth in the Purchase Agreement or other documents contemplated thereby, and no other promises or agreements have been made to any party other than those contained in this Release and those agreements. This Release shall be governed by the laws of the State of Nevada, without giving effect to any conflicts of laws provisions contained therein, and any litigation or proceeding in connection herewith shall be brought solely in the applicable state and federal courts located in Nevada, in accordance with the terms of the Purchase Agreement. This Release may not be modified except by a document signed by Purchaser. The Seller represents and warrants that neither it nor any other Seller Group Member has assigned any Claim(s) released by this Release, or any interest therein, to any third party, and that they are authorized to execute this Release. Any waiver by any Barrick Group Member of any breach of any kind or character whatsoever by Seller, whether such waiver be direct or implied, shall not be construed as a continuing waiver of, or consent to, any subsequent breach of this Release on the part of Seller. In addition, no course of dealing between the parties, nor any delay in exercising any rights or remedies hereunder or otherwise, shall operate as a waiver of any of the rights or remedies of the parties. The provisions of the Release are severable. If any part of this Release is found to be unenforceable, the other provisions shall remain fully valid and enforceable. It is the intention and agreement of the parties that all of the terms and conditions hereof be enforced to the fullest extent permitted by law. This Release shall inure to the benefit of and shall bind the successors and assigns of the respective parties hereto.
[remainder of page intentionally left blank; signature pages follow]
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     IN WITNESS WHEREOF, the Seller has caused this Release to be signed by their respective officers thereunto duly authorized as of the date first written above.
 	 	 	 	 	
 	 	KENNECOTT EXPLORATION (AUSTRALIA) LTD.:	
 	 	 	 	 	
 	 	By:	 	 	
 	 	 	 	 	
 	 	Name:	 	 	
 	 	 	 	 	
 	 	Its:	 	 	
 	 	 	 	 	
 Page 4 

 

Exhibit E
PURCHASER’S RELEASE
     THIS PURCHASER’S RELEASE (the “Release”) is given by Barrick Cortez, Inc. (“BCI”), the Cortez Joint Venture (the “Joint Venture”) and Barrick Gold Finance, Inc. (“Purchaser”) (collectively referred to herein as the “Barrick Group”), effective as of the             day of                      , 2008.
Background:
     WHEREAS, BCI and Kennecott Explorations (Australia) Ltd. (“Seller”) are parties to that certain Amended and Restated Mining Venture Agreement, effective as of January 1, 1998 (the “Joint Venture Agreement”), which governs the operations of the Cortez Joint Venture (the “Joint Venture”).
     WHEREAS, Purchaser is purchasing Seller’s 40% interest in the Joint Venture, Seller’s 40% undivided interest in the assets of the Joint Venture and certain other assets (the “Purchased Assets”) pursuant to the terms of that certain Purchase Agreement dated as of the 21 st day of February, 2008 by and between Seller and Purchaser (the “Purchase Agreement”).
     WHEREAS, as a condition to the sale by Seller of the Purchased Assets to Purchaser, the Barrick Group is obligated to execute this Release, which, among other things, releases the Seller and its Affiliates, as well as the officers, directors, partners, managers, stockholders, employees, agents and representatives of each such entity from claims of the Barrick Group related to the ownership and operation of the Joint Venture as more fully set forth herein.
     All capitalized terms used herein and not otherwise defined herein shall have the meaning ascribed to them in the Purchase Agreement or, if no such meaning is ascribed in the Purchase Agreement, in the Joint Venture Agreement.
Release:
     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Barrick Group hereby gives the following release:
      1. Release of Claims. In exchange for the considerations stated in the Purchase Agreement, the Barrick Group on behalf of themselves and any Affiliates of the Barrick Group, hereby irrevocably, unconditionally and completely release, discharge and agree to hold harmless Seller and each of its Affiliates of and from any and all claims, liabilities, charges, demands, grievances and causes of action of any kind or nature whatsoever whether direct or indirect, liquidated or unliquidated, accrued or unaccrued, known or unknown, which the Barrick Group or any of their predecessors in interest had, has, may in the future have, or may claim to have against Seller or its Affiliates (hereinafter, collectively referred to as the “Claim(s)”) relating to any of the following:
               (i) Seller’s ownership of a Participating Interest in the Joint Venture;
               (ii) Seller’s being a party to the Joint Venture Agreement, including funding obligations arising thereunder;
 Page 1 - 

 

               (iii) Seller’s ownership of an undivided interest in the Venture’s Assets and any other assets included in the Purchased Assets;
               (iv) Operations of the Joint Venture (including developmental, exploration and mining activities) and other operations on or in respect of the Purchased Assets;
               (v) Contracts or other commitments related to Venture Operations or Joint Venture Assets, including royalty contracts;
               (vi) Environmental and reclamation liabilities, obligations or impacts arising from Venture Operations, including the Cortez Mine, or otherwise existing in respect of the Purchased Assets whether on or off of the areas covered thereby;
               (vii) Governmental permits or other authorizations granted in respect of Venture Operations and other undertakings provided in respect thereof, including, without limitation, (A) the Irrevocable Standby Letter of Credit Number SM201472W for approximately $3,500,000 initially issued January 31, 2003 by Wachovia Bank, NA on behalf of Seller for the benefit of the US Department of the Interior, Bureau of Land Management, as amended, and (B) that certain Sale and Purchase Agreement, dated as of October 9, 1991, between, among others, Seller and Vernon Taylor, Jr. (“Taylor”), and the following documents related to such agreement with Taylor: the Royalty Agreement, the Assignment of Venture Interests and Acceptance, the Assumption Agreement, and the Guaranty;
               (viii) Any reclamation or other bonds or any other agreement or business arrangement, other than the Joint Venture Agreement, whereby Seller or any of its Affiliates is, or may be, directly or indirectly responsible for liabilities or obligations of the Cortez Venture, including, without limitation, the following agreements;
               (ix) The interest in the joint venture formed and operated pursuant to that certain Joint Venture Operating Agreement, dated as of March 7, 1983 and amended on June 17,1993, between Teck Cominco American Incorporated and Purchaser;
               (x) The residual liabilities of Seller, pursuant to Section 15.2 of the Joint Venture Agreement, except to the extent that any such residual liabilities constitute a breach of the Purchase Agreement; and
               (xi) Pending or future litigation or other legal proceedings in respect to any of items (i) through (x) above.
          (b) Notwithstanding anything contained in this Section 1 to the contrary, Purchaser is not assuming and shall not be liable for any of the following obligations or liabilities of Seller or its Affiliates, and each of such obligations and liabilities shall not be Assumed Liabilities under this Agreement:
               (i) any obligation or liability of Seller arising out of the Purchase Agreement or the breach of any representation, warranty or covenant of the Seller under the Purchase Agreement;
               (ii) any liability or obligation, for any federal, state, local or foreign income tax, gross receipts tax, franchise tax or other tax of any kind or nature on the income, receipts or the Products received by Seller from the Venture or resulting from Seller’s ownership of a Participating Interest in the Venture and its Assets (except for any tax customarily paid by the Venture including, without limitation, the
 Page 2 - 

 

Nevada net proceeds tax related to the Venture’s operations which was assumed by Purchaser and any other tax Purchaser has assumed or agreed to pay pursuant to the Purchase Agreement);
               (iii) any obligation or liability of Seller to any Affiliate of Seller;
               (iv) any obligation or liability of Seller or any of its Affiliates related to any Products of the Venture after distribution of such Product, or the proceeds of the sale thereof, to Seller;
               (v) any obligation of Seller arising from the fraud of Seller;
               (vi) any obligation or liability of Seller or any of its Affiliates for indebtedness for borrowed money or for other debts, liabilities or Losses that are the sole obligation of Seller or any of its Affiliates and not a Venture obligation, even if such indebtedness or liability was created to fund a Venture obligation (except for obligations under 1(a)(viii) above which do not constitute a breach of the Purchase Agreement); and
               (vii) any obligation or liability of Seller, of whatever kind or nature, incurred directly by Seller for its own account (except for obligations under 1(a)(viii) above which do not constitute a breach of the Purchase Agreement).
      2. Full and Complete Release. The Barrick Group understands and agrees that they are releasing and waiving Claim(s) that the Barrick Group does not know exist or may exist in the Barrick Group’s favor at this time which, if known by them, would materially affect their decision to sign this Release. Nonetheless, for the purpose of implementing a full and complete release and discharge of the Claims, the Barrick Group expressly acknowledges that the release set forth in this Release is intended to include in its effect, without limitation, all Claim(s) which the Barrick Group does not know or suspect to exist in their favor or to their benefit at the time of execution hereof and that the release set forth here contemplates the extinguishment of any such Claim(s).
      3. Not an Admission. This Release does not constitute an admission by any person, and each party specifically denies that it has violated any agreement, contract, law, or regulation or that it has otherwise done any other wrongful act.
      4. Covenant Not to Sue. With respect to the subject matter contained in this Release, the Barrick Group, on behalf of themselves and their Affiliates, hereby agrees and covenants that they shall not bring suit, or commence any other legal proceeding at law or in equity, seeking to recover any amounts or bring any action relating to the matters released herein.
      5. Miscellaneous. This Release represents the entire agreement between the parties with respect to the subject matter contained herein, except as otherwise specifically set forth or referred to herein, or as set forth in the Purchase Agreement or other documents contemplated thereby, and no other promises or agreements have been made to any party other than those contained in this Release and those agreements. This Release shall be governed by the laws of the State of Nevada, without giving effect to any conflicts of laws provisions contained therein, and any litigation or proceeding in connection herewith shall be brought solely in the applicable state and federal courts located in Nevada, in accordance with the terms of the Purchase Agreement. This Release may not be modified except by a document signed by Seller. The Barrick Group represents and warrants that they have not assigned any Claim(s) released by this Release, or any interest therein, to any third party, and that they are authorized to execute this Release. Any waiver by Seller of any breach of any kind or character whatsoever by the Barrick Group, whether such waiver be direct or implied, shall not be construed as a continuing waiver of, or consent to, any subsequent breach of this Release on the
 Page 3 - 

 

part of the Barrick Group. In addition, no course of dealing between the parties, nor any delay in exercising any rights or remedies hereunder or otherwise, shall operate as a waiver of any of the rights or remedies of the parties. The provisions of the Release are severable. If any part of this Release is found to be unenforceable, the other provisions shall remain fully valid and enforceable. It is the intention and agreement of the parties that all of the terms and conditions hereof be enforced to the fullest extent permitted by law. This Release shall inure to the benefit of and shall bind the successors and assigns of the respective parties hereto. This Release may be executed in any number of counterparts, each of which shall be deemed an original, and, as executed, shall constitute one agreement, binding upon all of the parties hereto, even though all of the parties do not sign the same counterpart.
[remainder of page intentionally left blank; signature pages follow]
 Page 4 - 

 

     IN WITNESS WHEREOF, the parties hereto have caused this Release to be signed by their respective officers thereunto duly authorized as of the date first written above.
 	 	 	 	 	 	 	
 	 	BARRICK GROUP:	 	 	
 	 	 	 	 	 	 	
 	 	Barrick Cortez, Inc.	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	Name:	 	 	 	 	
 	 	Its:	 	 	 	 	

 	 	Barrick Gold Finance, Inc.	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	Name:	 	 	 	 	
 	 	Its:	 	 	 	 	

 	 	Cortez Joint Venture,	 	 	
 	 	 	 	 	 	 	
 	 	By its only two members	 	 	
 	 	 	 	 	 	 	
 	 	Barrick Cortez, Inc.	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	Name:	 	 	 	 	
 	 	Its:	 	 	 	 	

 	 	Barrick Gold Finance, Inc.	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	Name:	 	 	 	 	
 	 	Its:	 	 	 	 	
 	 	 	 	 	 	 	
 Page 5 - 

 

Exhibit F
Assignment of Participating Interest
     This Assignment of Participating Interest (“Assignment”), dated as of the            day of                      , 2008, is from KENNECOTT EXPLORATIONS (AUSTRALIA) LTD., a Delaware corporation (“Assignor”), to BARRICK GOLD FINANCE, INC., a Delaware corporation whose address for purposes of this Assignment is                                                                 (“Assignee”).
     WHEREAS Assignor is a party to that certain Amended and Restated Mining Venture Agreement dated as of October 29, 1999, and effective as of January 1, 1998, by and among Placer Cortez Inc. (“PCI”), Placer Dome U.S. Inc. (“PDUS”) and Assignor (the “JVA”); and
     WHEREAS the JVA governs the joint ownership of and conduct of operations on the property encompassed by the area described in Exhibit A hereto (the “Area of Interest”); and
     WHEREAS the JVA provides that Assignor shall have a forty percent (40%) Participating Interest (as such term is defined in the JVA) and a corresponding undivided forty percent (40%) interest, as a tenant-in-common, in the Assets (as such term is defined in the JVA), that PCI shall have a sixty percent (60%) Participating Interest and a corresponding undivided sixty percent (60%) interest, as a tenant-in-common, in the Assets, and that PDUS shall be the Manager (as such term is defined in the JVA) of the joint venture known as the “Cortez Joint Venture”; and
     WHEREAS the mines and operations owned and operated pursuant to the terms of the Cortez Joint Venture are referred to collectively herein as the “Cortez Mine”; and
     WHEREAS Barrick Cortez, Inc., a Delaware corporation (“BCI”), has succeeded to PCI’s sixty percent (60%) Participating Interest and a corresponding undivided sixty percent (60%) interest, as a tenant-in-common, in the Assets, and BCI or an affiliate thereof has replaced PDUS as the Manager; and
     WHEREAS Assignor and Assignee have entered into that certain Purchase Agreement dated as of                                           , 2008 (the “Purchase Agreement”), pursuant to which Assignor has agreed to sell, assign, transfer and convey to Assignee Assignor’s forty percent (40%) Participating Interest in the Cortez Joint Venture, together with its corresponding undivided forty percent (40%) interest as a tenant-in-common in and to the Assets, as well as all of Assignor’s right, title and interest in and to any other properties or assets held by Assignor in the Area of Interest except those properties or assets, if any, that were previously offered by Assignor to the Cortez Joint Venture in accordance with the JVA and refused by the Cortez Joint Venture and excluding the interests of Seller under the Royalty Deed and the Production Royalty reserved under Section 2.3 of the Purchase Agreement;

 

     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
     1.  Assignment. Assignor hereby assigns, transfers and quitclaims to Assignee all of Assignor’s forty percent (40%) Participating Interest in the Cortez Joint Venture and all of Assignor’s right, title and interest under the JVA, together with a corresponding undivided forty percent (40%) interest as a tenant-in-common in and to all Assets of the Cortez Joint Venture, as well as all of Assignor’s right, title and interest in and to any other properties or assets held by Assignor relating to the Cortez Mine or to the Cortez Joint Venture or to the land within the Area of Interest except those, if any, that were previously offered by Grantor to the Cortez Joint Venture in accordance with the JVA and refused by the Cortez Joint Venture (collectively, the “Participating Interest”).
     2.  After-Acquired Interests. This Assignment is meant to and shall also transfer to Assignee any after-acquired rights, title or interest of Assignor in, to and under the JVA or the Participating Interest other than those that may hereafter be granted pursuant to the Purchase Agreement.
     3.  Exception to Assignment. This Assignment shall and does except from its operation the rights of Assignor now existing or hereafter arising pursuant to the Purchase Agreement and pursuant to that certain Rio Tinto Production Royalty Deed of even date herewith, which Rio Tinto Production Royalty Deed reserves to Assignor certain royalty rights with respect to the land within the Area of Interest and is recorded concurrently herewith.
     4.  Assumption. Assignee hereby accepts the foregoing assignment and transfer and hereby assumes all liabilities and obligations of Assignor associated with or arising under the JVA or the Participating Interest.
     5.  Disclaimer. Except as expressly provided Article 3 of the Purchase Agreement or elsewhere in the Purchase Agreement this “as is, where is” assignment is made with no representations or warranties, express or implied, as to title, ownership, use, possession, merchantability, fitness for a particular purpose, value, mineability, condition, operation, design, capacity or otherwise.
     6.  Further Assurances. The parties agree to execute and deliver such additional documents and to take such other actions as may be reasonably necessary to fully accomplish the transfer of interests meant to be effected by this Assignment.
     7.  Multiple Counterparts. This Assignment may be executed in multiple counterparts and all counterparts taken together shall be deemed to constitute one and the same document.
     8.  Binding Effect. This Assignment shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
 2 

 

     IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment to be effective as of the date first set forth above.
 	 	 	 	 	 	 	 	 	
 	 	Assignor:	 	 	
 	 	 	 	 	 	 	 	 	
 	 	 	 	KENNECOTT EXPLORATIONS (AUSTRALIA)
LTD., a Delaware corporation	 	 	
 	 	 	 	 	 	 	 	 	
 	 	 	 	By	 	 	 	 	
 	 	 	 	Name	 	 	 	 	
 	 	 	 	Title	 	 	 	 	

 	 	Assignee:	 	 	
 	 	 	 	 	 	 	 	 	
 	 	 	 	BARRICK GOLD FINANCE, INC., a Delaware
corporation	 	 	
 	 	 	 	 	 	 	 	 	
 	 	 	 	By	 	 	 	 	
 	 	 	 	Name	 	 	 	 	
 	 	 	 	Title	 	 	 	 	
 	 	 	 	 	 	 	 	 	
 3 

 

Exhibit A
Area of Interest
[Insert metes and bounds perimeter description of the existing AOI]
 4 

 

Exhibit G
 	 	 	
AFTER RECORDING, PLEASE RETURN TO:	 	 	

 	 	 	

 	 	 	
The undersigned affirms that this document
contains no Social Security Numbers
Quitclaim Deed
     This Quitclaim Deed, dated as of the                      day of                                            , 2008, is from KENNECOTT EXPLORATIONS (AUSTRALIA) LTD., a Delaware corporation (“Grantor”), to BARRICK GOLD FINANCE, INC., a Delaware corporation whose address for purposes of this Quitclaim Deed is                                                                                                                               (“Grantee”).
     WHEREAS Grantor is a party to that certain Amended and Restated Mining Venture Agreement dated as of October 29, 1999, and effective as of January 1, 1998, by and among Placer Cortez Inc. (“PCI”), Placer Dome U.S. Inc. (“PDUS”) and Grantor (the “JVA”); and
     WHEREAS the JVA governs the joint ownership of and conduct of operations on the property encompassed by the area described in Exhibit A hereto (the “Area of Interest”); and
     WHEREAS the JVA provides that Grantor shall have a forty percent (40%) Participating Interest (as such term is defined in the JVA) and a corresponding undivided forty percent (40%) interest, as a tenant-in-common, in the Assets (as such term is defined in the JVA), that PCI shall have a sixty percent (60%) Participating Interest and a corresponding undivided sixty percent (60%) interest, as a tenant-in-common, in the Assets, and that PDUS shall be the Manager (as such term is defined in the JVA) of the joint venture known as the “Cortez Joint Venture”; and
     WHEREAS Barrick Cortez, Inc., a Delaware corporation (“BCI”), has succeeded to PCI’s sixty percent (60%) Participating Interest and a corresponding undivided sixty percent (60%) interest, as a tenant-in-common, in the Assets, and BCI or an affiliate thereof has replaced PDUS as the Manager; and
     WHEREAS Grantor and Grantee have entered into that certain Purchase Agreement dated as of February 21, 2008 (the “Purchase Agreement”), pursuant to which Grantor has agreed to sell, assign, transfer and convey to Grantee Grantor’s forty percent (40%) Participating Interest in the Cortez Joint Venture, together with its corresponding undivided forty percent (40%) interest as a tenant-in-common in and to the Assets, as well as all of Grantor’s right, title and interest in and to any other properties or assets held by Grantor in the Area of Interest except those properties or assets, if any, that were previously offered by Grantor to the Cortez Joint

 

Venture in accordance with the JVA and refused by the Cortez Joint Venture and excluding the interests of Seller under the Royalty Deed and the Production Royalty reserved under Section 2.3 of the Purchase Agreement;
     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor does hereby quitclaim to Grantee all of Grantor’s forty percent (40%) undivided interest as a tenant-in-common in and to the properties described in Exhibit B hereto, which properties are located in Lander and Eureka Counties, Nevada, together with a corresponding undivided forty percent (40%) interest in and to all improvements, appurtenances, easements, tenements, benefits, hereditaments, fixtures, and other rights appurtenant to such properties, and together with any and all other real property and real property interests held by Grantor within the Area of Interest except those, if any, that were previously offered by Grantor to the Cortez Joint Venture in accordance with the JVA and refused by the Cortez Joint Venture (collectively, the “Premises”) .
     This Quitclaim Deed is meant to and shall also convey to Grantee any after-acquired rights, title or interest of Grantor in and to the Premises other than those that may hereafter be granted pursuant to the Purchase Agreement.
      Excepting, however, the rights of Grantor now existing or hereafter arising pursuant to the Purchase Agreement and pursuant to that certain Rio Tinto Production Royalty Deed of even date herewith, which Rio Tinto Production Royalty Deed reserves to Grantor certain royalty rights with respect to the Premises and is recorded concurrently herewith.
     IN WITNESS WHEREOF, Grantor has executed this Quitclaim Deed on the date indicated in the acknowledgement below, but effective as of the date first set forth above.
Grantor:
 	 	 	 	 	 	 	
 	 	KENNECOTT EXPLORATIONS (AUSTRALIA) 
LTD., a Delaware corporation	 	
 	 	 	 	 	 	 	
 	 	By	 	 	 	 	
 	 	Name	 	 	 	 	
 	 	Title	 	 	 	 	
 	 	 	 	 	 	 	
 2 

 

STATE OF                                             )
                                                              ) ss.
COUNTY OF                                         )
     On this                      day of                                           , 2008, personally appeared before me, a Notary Public,
                                                               , the                                            of KENNECOTT EXPLORATIONS (AUSTRALIA) LTD., a Delaware corporation, who acknowledged that he executed the above instrument on behalf of said corporation.
 	 	 	 	 	 	 	
[seal]	 	 	 	 	 	 	
 	 	 	 	 
NOTARY PUBLIC, residing in	 	 	

My commission expires:	 	 	 	 	 	 	

 3 

 

Exhibit A
Area of Interest
[Insert metes and bounds perimeter description of the existing AOI]
 4 

 

Exhibit B
Premises
[Insert listing of all patented claims, fee properties, unpatented mining claims and unpatented millsites within the Area of Interest]
 5 

 

Exhibit H
 	 	 	
AFTER RECORDING, PLEASE RETURN TO:	 	 	

 	 	 	

 	 	 	
The undersigned affirm that this document
contains no Social Security Numbers
Assignment
     This Assignment, dated as of the                      day of                                            , 2008, is from KENNECOTT EXPLORATIONS (AUSTRALIA) LTD., a Delaware corporation (“Assignor”), to BARRICK GOLD FINANCE, INC., a Delaware corporation whose address for purposes of this Assignment is                                                                                                                                (“Assignee”).
     WHEREAS Assignor is a party to that certain Amended and Restated Mining Venture Agreement dated as of October 29, 1999, and effective as of January 1, 1998, by and among Placer Cortez Inc. (“PCI”), Placer Dome U.S. Inc. (“PDUS”) and Assignor (the “JVA”); and
     WHEREAS the JVA governs the joint ownership of and conduct of operations on the property encompassed by the area described in Exhibit A hereto (the “Area of Interest”); and
     WHEREAS the JVA provides that Assignor shall have a forty percent (40%) Participating Interest (as such term is defined in the JVA) and a corresponding undivided forty percent (40%) interest, as a tenant-in-common, in the Assets (as such term is defined in the JVA), that PCI shall have a sixty percent (60%) Participating Interest and a corresponding undivided sixty percent (60%) interest, as a tenant-in-common, in the Assets, and that PDUS shall be the Manager (as such term is defined in the JVA) of the joint venture known as the “Cortez Joint Venture”; and
     WHEREAS the mines and operations owned and operated pursuant to the terms of the Cortez Joint Venture are referred to collectively herein as the “Cortez Mine”; and
     WHEREAS Barrick Cortez, Inc., a Delaware corporation (“BCI”), has succeeded to PCI’s sixty percent (60%) Participating Interest and a corresponding undivided sixty percent (60%) interest, as a tenant-in-common, in the Assets, and BCI or an affiliate thereof has replaced PDUS as the Manager; and
     WHEREAS Assignor and Assignee have entered into that certain Purchase Agreement dated as of February 21, 2008 (the “Purchase Agreement”), pursuant to which Assignor has agreed to sell, assign, transfer and convey to Assignee Assignor’s forty percent (40%)

 

Participating Interest in the Cortez Joint Venture, together with its corresponding undivided forty percent (40%) interest as a tenant-in-common in and to the Assets, as well as all of Assignor’s right, title and interest in and to any other properties or assets held by Assignor in the Area of Interest except those properties or assets, if any, that were previously offered by Assignor to the Cortez Joint Venture in accordance with the JVA and refused by the Cortez Joint Venture and excluding the interests of Seller under the Royalty Deed and the Production Royalty reserved under Section 2.3 of the Purchase Agreement;
     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
     1.  Assignment . Assignor hereby assigns, transfers and quitclaims to Assignee all of Assignor’s forty percent (40%) undivided interest as a tenant-in-common in and to the mining leases, royalty agreements, joint venture agreements and other agreements described in Exhibit B hereto, together with a corresponding undivided forty percent (40%) interest in and to all improvements, appurtenances, easements, tenements, benefits, hereditaments, fixtures, and other rights appurtenant to such mining leases, royalty agreements, joint venture agreements and other agreements, and together with all of Assignor’s right, title and interest in and to any other mining leases, royalty agreements, joint venture agreements and other agreements held by Assignor relating to the Cortez Mine or to the Cortez Joint Venture or to the land within the Area of Interest except those, if any, that were previously offered by Grantor to the Cortez Joint Venture in accordance with the JVA and refused by the Cortez Joint Venture (collectively, the “Agreements”), which Agreements pertain to properties located in Lander and Eureka Counties, Nevada.
     2.  After-Acquired Interests . This Assignment is meant to and shall also transfer to Assignee any after-acquired rights, title or interest of Assignor in, to and under the Agreements other than those that may hereafter be granted pursuant to the Purchase Agreement.
     3.  Third Party Consents . To the extent that any consents are required from third parties prior to assignment or transfer under the terms of any Agreement, this Assignment shall not be deemed effective until such consent has been obtained.
     4.  Exception to Assignment . This Assignment shall and does except from its operation the rights of Assignor now existing or hereafter arising pursuant to the Purchase Agreement and pursuant to that certain Rio Tinto Production Royalty Deed of even date herewith, which Rio Tinto Production Royalty Deed reserves to Assignor certain royalty rights with respect to the land within the Area of Interest and is recorded concurrently herewith.
     5.  Assumption . Assignee hereby accepts the foregoing assignment and transfer and hereby assumes all liabilities and obligations of Assignor associated with and arising under the Agreements.
 2 

 

     6.  Disclaimer . Except as expressly provided Article 3 of the Purchase Agreement or elsewhere in the Purchase Agreement this “as is, where is” assignment is made with no representations or warranties, express or implied, as to title, ownership, use, possession, merchantability, fitness for a particular purpose, value, mineability, condition, operation, design, capacity or otherwise.
     7.  Further Assurances . The parties agree to execute and deliver such additional documents and to take such other actions as may be reasonably necessary to fully accomplish the transfer of interests meant to be effected by this Assignment, including without limitation the procurement of any required consents.
     8.  Multiple Counterparts . This Assignment may be executed in multiple counterparts and all counterparts taken together shall be deemed to constitute one and the same document.
     9.  Binding Effect This Assignment shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
     IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment on the dates set forth in the acknowledgements below, but effective as of the date first set forth above.

 	Assignor:	 	 	 	
 		
 	 	KENNECOTT EXPLORATIONS (AUSTRALIA) 
LTD., a Delaware corporation	 	
 	 	 	 	 	 	 	
 	 	By	 	 	 	 	
 	 	Name	 	 	 	 	
 	 	Title	 	 	 	 	

 	Assignee:	 	 	 	
 		
 	 	BARRICK GOLD FINANCE, INC., a Delaware corporation	 	 	
 	 	 	 	 	 	 	
 	 	By	 	 	 	 	
 	 	Name	 	 	 	 	
 	 	Title	 	 	 	 	
 	 	 	 	 	 	 	
 3 

 

STATE OF                                            )
                                                              ) ss.
COUNTY OF                                         )
     On this                      day of                                           , 2008, personally appeared before me, a Notary Public,
                                                               , the                                            of KENNECOTT EXPLORATIONS (AUSTRALIA) LTD., a Delaware corporation, who acknowledged that he executed the above instrument on behalf of said corporation.
 	 	 	 	 	 	 	
[seal]	 	 	 	 	 	 	
 	 	 	 	 
NOTARY PUBLIC, residing in	 	 	

My commission expires:	 	 	 	 	 	 	

STATE OF                                            )
                                                             ) ss.
COUNTY OF                                       )
     On this                      day of                                           , 2008, personally appeared before me, a Notary Public,                                                                , the                                            of BARRICK GOLD FINANCE, INC., a Delaware corporation, who acknowledged that he executed the above instrument on behalf of said corporation.
 	 	 	 	 	 	 	
[seal]	 	 	 	 	 	 	
 	 	 	 	 
NOTARY PUBLIC, residing in	 	 	

My commission expires:	 	 	 	 	 	 	

 4 

 

Exhibit A
Area of Interest
[Insert metes and bounds perimeter description of the existing AOI]
 5 

 

Exhibit B
Agreements
[List here:
All mining leases within the area of Interest, including a legal description of the leased lands in order to make this document recordable;
The two joint venture agreements to which the Cortez Joint Venture is a party (Buckhorn and Robertson), including a legal description of the subject lands in order to make this document recordable;
The deeds or agreements creating the Royal Gold, Inc. gross smelter returns royalty, the Idaho Successors overriding gross value royalty, the Placer/Kennecott remnant of the Idaho Successors overriding gross value royalty, and the ECM, Inc. net value royalty, as well as the lands covered by such royalties in order to make this document recordable;
All other agreements or contracts pertaining to the Cortez Joint Venture or the Cortez Mine.]
 6 

 

Exhibit I
AFTER RECORDING, PLEASE RETURN TO:

                                                                                    
The undersigned affirms that this document
contains no Social Security Numbers
Water Rights Deed
     This Water Rights Deed, dated as of the                      day of                                            , 2008, is from KENNECOTT EXPLORATIONS (AUSTRALIA) LTD., a Delaware corporation (“Grantor”), to BARRICK GOLD FINANCE, INC., a Delaware corporation whose address for purposes of this Water Rights Deed is                                                                                                           (“Grantee”).
     WHEREAS Grantor is a party to that certain Amended and Restated Mining Venture Agreement dated as of October 29, 1999, and effective as of January 1, 1998, by and among Placer Cortez Inc. (“PCI”), Placer Dome U.S. Inc. (“PDUS”) and Grantor (the “JVA”); and
     WHEREAS the JVA governs the joint ownership of and conduct of operations on the property encompassed by the area described in Exhibit A hereto (the “Area of Interest”); and
     WHEREAS the JVA provides that Grantor shall have a forty percent (40%) Participating Interest (as such term is defined in the JVA) and a corresponding undivided forty percent (40%) interest, as a tenant-in-common, in the Assets (as such term is defined in the JVA), that PCI shall have a sixty percent (60%) Participating Interest and a corresponding undivided sixty percent (60%) interest, as a tenant-in-common, in the Assets, and that PDUS shall be the Manager (as such term is defined in the JVA) of the joint venture known as the “Cortez Joint Venture”; and
     WHEREAS Barrick Cortez, Inc., a Delaware corporation (“BCI”), has succeeded to PCI’s sixty percent (60%) Participating Interest and a corresponding undivided sixty percent (60%) interest, as a tenant-in-common, in the Assets, and BCI or an affiliate thereof has replaced PDUS as the Manager; and
     WHEREAS Grantor and Grantee have entered into that certain Purchase Agreement dated as of February 21, 2008 (the “Purchase Agreement”), pursuant to which Grantor has agreed to sell, assign, transfer and convey to Grantee Grantor’s forty percent (40%) Participating Interest in the Cortez Joint Venture, together with its corresponding undivided forty percent (40%) interest as a tenant-in-common in and to the Assets, as well as all of Grantor’s right, title and interest in and to any other properties or assets held by Grantor in the Area of Interest except those properties or assets, if any, that were previously offered by Grantor to the Cortez Joint

 

Venture in accordance with the JVA and refused by the Cortez Joint Venture and excluding the interests of Seller under the Royalty Deed and the Production Royalty reserved under Section 2.3 of the Purchase Agreement;
     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor does hereby quitclaim, assign and transfer to Grantee all of Grantor’s forty percent (40%) undivided interest as a tenant-in-common in and to the water rights described in Exhibit B hereto, which water rights are located in Lander and Eureka Counties, Nevada, together with a corresponding undivided forty percent (40%) interest in and to all easements, rights-of-way, wells, pumps, utilities, diversion structures, canals, ditches, pipelines, headgates, weirs, and other entitlements, fixtures and facilities used to withdraw, pump, divert, store, transport and use said water rights, and together with any and all other water rights, easements, rights-of-way, wells, pumps, utilities, diversion structures, canals, ditches, pipelines, headgates, weirs, and other entitlements, fixtures and facilities used to withdraw, pump, divert, store, transport and use water held by Grantor anywhere within the Area of Interest except those, if any, that were previously offered by Grantor to the Cortez Joint Venture in accordance with the JVA and refused by the Cortez Joint Venture (collectively, the “Water Rights”).
     This Water Rights Deed is meant to and shall also convey to Grantee any after-acquired rights, title or interest of Grantor in and to the Water Rights other than those that may hereafter be granted pursuant to the Purchase Agreement.
      Excepting, however, the rights of Grantor now existing or hereafter arising pursuant to the Purchase Agreement and pursuant to that certain Rio Tinto Production Royalty Deed of even date herewith, which Rio Tinto Production Royalty Deed reserves to Grantor certain royalty rights with respect to the Premises and is recorded concurrently herewith.
     IN WITNESS WHEREOF, Grantor has executed this Water Rights Deed on the date indicated in the acknowledgement below, but effective as of the date first set forth above.
Grantor:
 	 	 	 	 	 	 	
 	 	KENNECOTT EXPLORATIONS (AUSTRALIA)	
 	 	LTD., a Delaware corporation	
 	 	 	 	 	 	 	
 	 	By	 	 	 	 	
 	 	 	 	 	 	 	
 	 	Name	 	 	 	 	
 	 	 	 	 	 	 	
 	 	Title	 	 	 	 	
 	 	 	 	 	 	 	
 2 

 

STATE OF                                                                )
                                                                                ) ss.
COUNTY OF                                                            )
     On this                      day of                                           , 2008, personally appeared before me, a Notary Public,                                                       , the                                                                of KENNECOTT EXPLORATIONS (AUSTRALIA) LTD., a Delaware corporation, who acknowledged that he executed the above instrument on behalf of said corporation.
 	 	 	 	 	
[seal]	 	 	 	 	
 	 	 	 	 	
 	 	 	 	NOTARY PUBLIC, residing in	

My commission expires:	 	 	 	 	

 3 

 

Exhibit A
Area of Interest
[Insert metes and bounds perimeter description of the existing AOI]
 4 

 

Exhibit B
Water Rights
[Insert listing of all water rights within the Area of Interest]
 5 

 

Exhibit J
AFTER RECORDING, PLEASE RETURN TO:

                                                                                    
The undersigned affirm that this document
contains no Social Security Numbers
Assignment of Easements
     This Assignment of Easements (“Assignment”), dated as of the                      day of                                           , 2008, is from KENNECOTT EXPLORATIONS (AUSTRALIA) LTD., a Delaware corporation (“Assignor”), to BARRICK GOLD FINANCE, INC., a Delaware corporation whose address for purposes of this Assignment is                                                                                                           (“Assignee”).
     WHEREAS Assignor is a party to that certain Amended and Restated Mining Venture Agreement dated as of October 29, 1999, and effective as of January 1, 1998, by and among Placer Cortez Inc. (“PCI”), Placer Dome U.S. Inc. (“PDUS”) and Assignor (the “JVA”); and
     WHEREAS the JVA governs the joint ownership of and conduct of operations on the property encompassed by the area described in Exhibit A hereto (the “Area of Interest”); and
     WHEREAS the JVA provides that Assignor shall have a forty percent (40%) Participating Interest (as such term is defined in the JVA) and a corresponding undivided forty percent (40%) interest, as a tenant-in-common, in the Assets (as such term is defined in the JVA), that PCI shall have a sixty percent (60%) Participating Interest and a corresponding undivided sixty percent (60%) interest, as a tenant-in-common, in the Assets, and that PDUS shall be the Manager (as such term is defined in the JVA) of the joint venture known as the “Cortez Joint Venture”; and
     WHEREAS the mines and operations owned and operated pursuant to the terms of the Cortez Joint Venture are referred to collectively herein as the “Cortez Mine”; and
     WHEREAS Barrick Cortez, Inc., a Delaware corporation (“BCI”), has succeeded to PCI’s sixty percent (60%) Participating Interest and a corresponding undivided sixty percent (60%) interest, as a tenant-in-common, in the Assets, and BCI or an affiliate thereof has replaced PDUS as the Manager; and
     WHEREAS Assignor and Assignee have entered into that certain Purchase Agreement dated as of February 21, 2008 (the “Purchase Agreement”), pursuant to which Assignor has

 

agreed to sell, assign, transfer and convey to Assignee Assignor’s forty percent (40%) Participating Interest in the Cortez Joint Venture, together with its corresponding undivided forty percent (40%) interest as a tenant-in-common in and to the Assets, as well as all of Assignor’s right, title and interest in and to any other properties or assets held by Assignor in the Area of Interest except those properties or assets, if any, that were previously offered by Assignor to the Cortez Joint Venture in accordance with the JVA and refused by the Cortez Joint Venture and excluding the interests of Seller under the Royalty Deed and the Production Royalty reserved under Section 2.3 of the Purchase Agreement;
     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
     1.  Assignment. Assignor hereby assigns, transfers and quitclaims to Assignee all of Assignor’s forty percent (40%) undivided interest as a tenant-in-common in and to all easements and rights-of-way pertaining to the Cortez Mine or to the Cortez Joint Venture or to the land within the Area of Interest, together with a corresponding undivided forty percent (40%) interest in and to all improvements, utilities, appurtenances, fixtures, facilities, tenements, benefits, hereditaments, and other rights appurtenant to such easements and rights of way, and together
with all of Assignor’s right, title and interest in and to any other easements, rights-of-way, improvements, utilities, appurtenances, fixtures, facilities, tenements, benefits, hereditaments and other rights appurtenant to such easements and rights of way pertaining to the Cortez Mine or to the Cortez Joint Venture or to the land within the Area of Interest except those, if any, that were previously offered by Grantor to the Cortez Joint Venture in accordance with the JVA and refused by the Cortez Joint Venture (collectively, the “Easements”), which Easements pertain to properties located in Lander and Eureka Counties, Nevada.
     2.  After-Acquired Interests. This Assignment is meant to and shall also transfer to Assignee any after-acquired rights, title or interest of Assignor in, to and under the Easements other than those that may hereafter be granted pursuant to the Purchase Agreement.
     3.  Exception to Assignment. This Assignment shall and does except from its operation the rights of Assignor now existing or hereafter arising pursuant to the Purchase Agreement or pursuant to that certain Rio Tinto Production Royalty Deed of even date herewith, which Rio Tinto Production Royalty Deed reserves to Assignor certain royalty rights with respect to the land within the Area of Interest and is recorded concurrently herewith.
     4.  Assumption. Assignee hereby accepts the foregoing assignment and transfer and hereby assumes all liabilities and obligations of Assignor associated with and arising under the Easements.
     5.  Disclaimer. Except as expressly provided Article 3 of the Purchase Agreement or elsewhere in the Purchase Agreement this “as is, where is” assignment is made with no representations or warranties, express or implied, as to title, ownership, use, possession,
 2 

 

merchantability, fitness for a particular purpose, value, mineability, condition, operation, design, capacity or otherwise.
     6.  Further Assurances. The parties agree to execute and deliver such additional documents and to take such other actions as may be reasonably necessary to fully accomplish the transfer of interests meant to be effected by this Assignment.
     7.  Multiple Counterparts. This Assignment may be executed in multiple counterparts and all counterparts taken together shall be deemed to constitute one and the same document.
     8.  Binding Effect . This Assignment shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
     IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment on the dates set forth in the acknowledgements below, but effective as of the date first set forth above.
Assignor:
 	 	 	 	 	 	 	
 	 	KENNECOTT EXPLORATIONS (AUSTRALIA)  	
 	 	LTD., a Delaware corporation	
 	 	 	 	 	 	 	
 	 	By	 	 	 	 	
 	 	 	 	 	 	 	
 	 	Name	 	 	 	 	
 	 	 	 	 	 	 	
 	 	Title	 	 	 	 	
 	 	 	 	 	 	 	
Assignee:
 	 	 	 	 	 	 	
 	 	BARRICK GOLD FINANCE, INC., a Delaware  	
 	 	corporation	
 	 	 	 	 	 	 	
 	 	By	 	 	 	 	
 	 	 	 	 	 	 	
 	 	Name	 	 	 	 	
 	 	 	 	 	 	 	
 	 	Title	 	 	 	 	
 	 	 	 	 	 	 	
 3 

 

STATE OF                                                                )
                                                                                ) ss.
COUNTY OF                                                            )
     On this                      day of                                           , 2008, personally appeared before me, a Notary Public,                                                       , the                                                                of KENNECOTT EXPLORATIONS (AUSTRALIA) LTD., a Delaware corporation, who acknowledged that he executed the above instrument on behalf of said corporation.
 	 	 	 	 	
[seal]	 	 	 	 	
 	 	 	 	 	
 	 	 	 	NOTARY PUBLIC, residing in	

My commission expires:	 	 	 	 	

STATE OF                                                                )
                                                                                ) ss.
COUNTY OF                                                            )
     On this                      day of                                           , 2008, personally appeared before me, a Notary Public,                                                                                     , the                                                                of BARRICK GOLD FINANCE, INC., a Delaware corporation, who acknowledged that he executed the above instrument on behalf of said corporation.
 	 	 	 	 	
[seal]	 	 	 	 	
 	 	 	 	 	
 	 	 	 	NOTARY PUBLIC, residing in	

My commission expires:	 	 	 	 	

 4 

 

Exhibit A
Area of Interest
[Insert metes and bounds perimeter description of the existing AOI]
 5 

 

Exhibit K
AFTER RECORDING, PLEASE RETURN TO:

                                                              
The undersigned affirm that this document
contains no Social Security Numbers
Assignment of Permits
     This Assignment of Permits (“Assignment”), dated as of the                      day of                                           , 2008, is from KENNECOTT EXPLORATIONS (AUSTRALIA) LTD., a Delaware corporation (“Assignor”), to BARRICK GOLD FINANCE, INC., a Delaware corporation whose address for purposes of this Assignment is                                                                                         (“Assignee”).
     WHEREAS Assignor is a party to that certain Amended and Restated Mining Venture Agreement dated as of October 29, 1999, and effective as of January 1, 1998, by and among Placer Cortez Inc. (“PCI”), Placer Dome U.S. Inc. (“PDUS”) and Assignor (the “JVA”); and
     WHEREAS the JVA governs the joint ownership of and conduct of operations on the property encompassed by the area described in Exhibit A hereto (the “Area of Interest”); and
     WHEREAS the JVA provides that Assignor shall have a forty percent (40%) Participating Interest (as such term is defined in the JVA) and a corresponding undivided forty percent (40%) interest, as a tenant-in-common, in the Assets (as such term is defined in the JVA), that PCI shall have a sixty percent (60%) Participating Interest and a corresponding undivided sixty percent (60%) interest, as a tenant-in-common, in the Assets, and that PDUS shall be the Manager (as such term is defined in the JVA) of the joint venture known as the “Cortez Joint Venture”; and
     WHEREAS the mines and operations owned and operated pursuant to the terms of the Cortez Joint Venture are referred to collectively herein as the “Cortez Mine”; and
     WHEREAS Barrick Cortez, Inc., a Delaware corporation (“BCI”), has succeeded to PCI’s sixty percent (60%) Participating Interest and a corresponding undivided sixty percent (60%) interest, as a tenant-in-common, in the Assets, and BCI or an affiliate thereof has replaced PDUS as the Manager; and
     WHEREAS Assignor and Assignee have entered into that certain Purchase Agreement dated as of February 21, 2008 (the “Purchase Agreement”), pursuant to which Assignor has

 

agreed to sell, assign, transfer and convey to Assignee Assignor’s forty percent (40%) Participating Interest in the Cortez Joint Venture, together with its corresponding undivided forty percent (40%) interest as a tenant-in-common in and to the Assets, as well as all of Assignor’s right, title and interest in and to any other properties or assets held by Assignor in the Area of Interest except those properties or assets, if any, that were previously offered by Assignor to the Cortez Joint Venture in accordance with the JVA and refused by the Cortez Joint Venture and excluding the interests of Seller under the Royalty Deed and the Production Royalty reserved under Section 2.3 of the Purchase Agreement;
     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
     1.  Assignment . Assignor hereby assigns, transfers and quitclaims to Assignee all of Assignor’s forty percent (40%) undivided interest as a tenant-in-common in and to all environmental and operating permits, authorizations and approvals relating to the Cortez Mine or to the Cortez Joint Venture or to the land within the Area of Interest, together with a corresponding undivided forty percent (40%) interest in and to all entitlements, authorizations, approvals, consents, benefits, privileges and other rights relating to or arising under such environmental and operating permits, authorizations and approvals, and together with all of Assignor’s right, title and interest in and to any other environmental and operating permits, authorizations, approvals, entitlements, approvals, benefits, consents, privileges and other rights pertaining to the Cortez Mine or to the Cortez Joint Venture or to the land within the Area of Interest except those, if any, that were previously offered by Grantor to the Cortez Joint Venture in accordance with the JVA and refused by the Cortez Joint Venture (collectively, the “Permits”), which Permits pertain to properties located in Lander and Eureka Counties, Nevada.
     2.  After-Acquired Interests . This Assignment is meant to and shall also transfer to Assignee any after-acquired rights, title or interest of Assignor in, to and under the Permits other than those that may hereafter be granted pursuant to the Purchase Agreement.
     3.  Exception to Assignment . This Assignment shall and does except from its operation the rights of Assignor now existing or hereafter arising pursuant to the Purchase Agreement or pursuant to that certain Rio Tinto Production Royalty Deed of even date herewith, which Rio Tinto Production Royalty Deed reserves to Assignor certain royalty rights with respect to the land within the Area of Interest and is recorded concurrently herewith.
     4.  Assumption . Assignee hereby accepts the foregoing assignment and transfer and hereby assumes all liabilities and obligations of Assignor associated with and arising under the Permits.
     5.  Disclaimer . Except as expressly provided Article 3 of the Purchase Agreement or elsewhere in the Purchase Agreement this “as is, where is” assignment is made with no representations or warranties, express or implied, as to title, ownership, use, possession,
 2 

 

merchantability, fitness for a particular purpose, value, mineability, condition, operation, design, capacity or otherwise.
     6.  Further Assurances . The parties agree to execute and deliver such additional documents and to take such other actions as may be reasonably necessary to fully accomplish the transfer of interests meant to be effected by this Assignment.
     7.  Multiple Counterparts . This Assignment may be executed in multiple counterparts and all counterparts taken together shall be deemed to constitute one and the same document.
     8.  Binding Effect . This Assignment shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
     IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment on the dates set forth in the acknowledgements below, but effective as of the date first set forth above.
 	 	 	 	 	 	 	 	 	
 	 	Assignor:	 	 	
 	 	 	 	 	 	 	 	 	
 	 	 	 	KENNECOTT EXPLORATIONS (AUSTRALIA)
 LTD., a Delaware corporation	 	
 	 	 	 	 	 	 	 	 	
 	 	 	 	By	 	 	 	 	
 	 	 	 	 	 	 	 	 	
 	 	 	 	Name	 	 	 	 	
 	 	 	 	 	 	 	 	 	
 	 	 	 	Title	 	 	 	 	

 	 	Assignee:	 	 	
 	 	 	 	 	 	 	 	 	
 	 	 	 	BARRICK GOLD FINANCE, INC., a Delaware corporation	 	 	
 	 	 	 	 	 	 	 	 	
 	 	 	 	By	 	 	 	 	
 	 	 	 	 	 	 	 	 	
 	 	 	 	Name	 	 	 	 	
 	 	 	 	 	 	 	 	 	
 	 	 	 	Title	 	 	 	 	
 	 	 	 	 	 	 	 	 	
 3 

 

 	 	 	 	 	
STATE OF	 	 	 	)	
 	 	 	 	
 	 	 	 	) ss.	
COUNTY OF	 	 	 	)	
 	 	 	 	 	
          On this                      day of                                            , 2008, personally appeared before me, a Notary Public,                                                                , the                                            of KENNECOTT EXPLORATIONS (AUSTRALIA) LTD., a Delaware corporation, who acknowledged that he executed the above instrument on behalf of said corporation.
 	 	 	
[seal]	 	 	

 	 	NOTARY PUBLIC, residing in	

My commission expires:	 	 	

 	 	 	 	 	
STATE OF	 	 	 	)	
 	 	 	 	
 	 	 	 	) ss.	
COUNTY OF	 	 	 	)	
 	 	 	 	 	
          On this                      day of                                           , 2008, personally appeared before me, a Notary Public,                                                                , the                                                                 of BARRICK GOLD FINANCE, INC., a Delaware corporation, who acknowledged that he executed the above instrument on behalf of said corporation.
 	 	 	
[seal]	 	 	

 	 	NOTARY PUBLIC, residing in	

My commission expires:	 	 	

 4 

 

Exhibit A
Area of Interest
[Insert metes and bounds perimeter description of the existing AOI]
 5 

 

Exhibit L
Bill of Sale
     This Bill of Sale, dated as of the            day of                                           , 2008, is from KENNECOTT EXPLORATIONS (AUSTRALIA) LTD., a Delaware corporation (“Seller”), to BARRICK GOLD FINANCE, INC., a Delaware corporation whose address for purposes of this Assignment is                                                                (“Buyer”).
     WHEREAS Seller is a party to that certain Amended and Restated Mining Venture Agreement dated as of October 29, 1999, and effective as of January 1, 1998, by and among Placer Cortez Inc. (“PCI”), Placer Dome U.S. Inc. (“PDUS”) and Seller (the “JVA”); and
     WHEREAS the JVA governs the joint ownership of and conduct of operations on the property encompassed by the area described in Exhibit A hereto (the “Area of Interest”); and
     WHEREAS the JVA provides that Seller shall have a forty percent (40%) Participating Interest (as such term is defined in the JVA) and a corresponding undivided forty percent (40%) interest, as a tenant-in-common, in the Assets (as such term is defined in the JVA), that PCI shall have a sixty percent (60%) Participating Interest and a corresponding undivided sixty percent (60%) interest, as a tenant-in-common, in the Assets, and that PDUS shall be the Manager (as such term is defined in the JVA) of the joint venture known as the “Cortez Joint Venture”; and
     WHEREAS the mines and operations owned and operated pursuant to the terms of the Cortez Joint Venture are referred to collectively herein as the “Cortez Mine”; and
     WHEREAS Barrick Cortez, Inc., a Delaware corporation (“BCI”), has succeeded to PCI’s sixty percent (60%) Participating Interest and a corresponding undivided sixty percent (60%) interest, as a tenant-in-common, in the Assets, and BCI or an affiliate thereof has replaced PDUS as the Manager; and
     WHEREAS Seller and Buyer have entered into that certain Purchase Agreement dated as of February 21, 2008 (the “Purchase Agreement”), pursuant to which Seller has agreed to sell, assign, transfer and convey to Buyer Seller’s forty percent (40%) Participating Interest in the Cortez Joint Venture, together with its corresponding undivided forty percent (40%) interest as a tenant-in-common in and to the Assets, as well as all of Seller’s right, title and interest in and to any other properties or assets held by Seller in the Area of Interest except those properties or assets, if any, that were previously offered by Seller to the Cortez Joint Venture in accordance with the JVA and refused by the Cortez Joint Venture and excluding the interests of Seller under the Royalty Deed and the Production Royalty reserved under Section 2.3 of the Purchase Agreement;
     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller does hereby sell, transfer, convey and assign to Buyer all of Seller’s forty percent (40%) undivided interest as a tenant-in-common in and to all goods,

 

equipment, machinery, processing plants, buildings, structures, mined and crashed ore stockpiles, work-in-process inventories and fluids, precipitate and slag, warehouse inventories, supplies, parts, fixtures, power lines, utility lines, rail lines and spurs, loadout facilities, furniture, furnishings, tools, appliances, drill core, geologic data, maps, files, reports, licenses, intellectual property, prepaid expenses, rights to refunds, books, records, technical information and all other tangible and intangible personal property and Assets pertaining to or located on the Cortez Mine, the Cortez Joint Venture or the land within the Area of Interest, together with all of Seller’s right, title and interest in and to any other such personal property, personal property interests or Assets pertaining to or located on the Cortez Mine, the Cortez Joint Venture or the land within the Area of Interest except those, if any, that were previously offered by Seller to the Cortez Joint Venture in accordance with the JVA and refused by the Cortez Joint Venture (collectively, the “Personal Property”).
     This Bill of Sale is meant to and shall also convey to Grantee any after-acquired rights, title or interest of Seller in and to the Personal Property other than those that may hereafter be granted pursuant to the Purchase Agreement.
      Excepting, however, the rights of Seller now existing or hereafter arising pursuant to the Purchase Agreement or pursuant to that certain Rio Tinto Production Royalty Deed of even date herewith, which Rio Tinto Production Royalty Deed reserves to Seller certain royalty rights with respect to the land within the Area of Interest and is recorded concurrently herewith.
      Except as expressly provided Article 3 of the Purchase Agreement or elsewhere in the Purchase Agreement this “as is, where is” conveyance is made with no representations or warranties, express or implied, as to title, ownership, use, possession, merchantability, fitness for a particular purpose, value, mineability, condition, operation, design, capacity or otherwise.
     Seller agrees to execute and deliver such additional documents and to take such other actions as may be reasonably necessary to fully accomplish the transfer of interests meant to be effected by this Bill of Sale.
     This Bill of Sale shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
[remainder of page intentionally blank; signature page follows]
 2 

 

     IN WITNESS WHEREOF, Seller has executed this Bill of Sale to be effective as of the date first set forth above.
 	 	 	 	 	 	 	 	 	
 	 	Seller:	 	 	
 	 	 	 	 	 	 	 	 	
 	 	 	 	KENNECOTT EXPLORATIONS (AUSTRALIA)
 LTD., a Delaware corporation	 	
 	 	 	 	 	 	 	 	 	
 	 	 	 	By	 	 	 	 	
 	 	 	 	 	 	 	 	 	
 	 	 	 	Name	 	 	 	 	
 	 	 	 	 	 	 	 	 	
 	 	 	 	Title	 	 	 	 	
 	 	 	 	 	 	 	 	 	
 3 

 

Exhibit A
Area of Interest
[Insert metes and bounds perimeter description of the existing AOI]
 4 

 

Exhibit M
AFTER RECORDING, PLEASE RETURN TO:

                                                                                          
The undersigned affirms that this document
contains no Social Security Numbers
Conveyance of Royalty Interest
     This Conveyance of Royalty Interest (“Conveyance”), dated as of the            day of                      , 2008, is from KENNECOTT EXPLORATIONS (AUSTRALIA) LTD., a Delaware corporation (“Grantor”), to BARRICK GOLD FINANCE, INC., a Delaware corporation
whose address for purposes of this Conveyance is                                                                (“Grantee”).
     WHEREAS Grantor is a party to that certain Amended and Restated Mining Venture Agreement dated as of October 29, 1999, and effective as of January 1, 1998, by and among Placer Cortez Inc. (“PCI”), Placer Dome U.S. Inc. (“PDUS”) and Grantor (hereinafter referred to as the “JVA”); and
     WHEREAS the JVA governs the joint ownership of and conduct of operations on the property encompassed by the area described in Exhibit A hereto (the “Area of Interest”); and
     WHEREAS the JVA provides that Grantor shall have a forty percent (40%) Participating Interest (as such term is defined in the JVA) and a corresponding undivided forty percent (40%) interest, as a tenant-in-common, in the Assets (as such term is defined in the JVA), that PCI shall have a sixty percent (60%) Participating Interest and a corresponding undivided sixty percent (60%) interest, as a tenant-in-common, in the Assets, and that PDUS shall be the Manager (as such term is defined in the JVA) of the joint venture known as the “Cortez Joint Venture”; and
     WHEREAS Barrick Cortez, Inc., a Delaware corporation (“BCI”), has succeeded to PCI’s sixty percent (60%) Participating Interest and a corresponding undivided sixty percent (60%) interest, as a tenant-in-common, in the Assets, and BCI or an affiliate thereof has replaced PDUS as the Manager; and
     WHEREAS Grantor and Grantee have entered into that certain Purchase Agreement dated as of                                           , 2008 (the “Purchase Agreement”), pursuant to which Grantor has agreed to sell, assign, transfer and convey to Grantee Grantor’s forty percent (40%) Participating Interest in the Cortez Joint Venture, together with its corresponding undivided forty percent (40%) interest as a tenant-in-common in and to the Assets, as well as all of Grantor’s

 

right, title and interest in and to any other properties or assets held by Grantor in the Area of Interest except those properties or assets, if any, that were previously offered by Grantor to the Cortez Joint Venture in accordance with the JVA and refused by the Cortez Joint Venture and excluding the interests of Seller under the Royalty Deed and the Production Royalty reserved under Section 2.3 of the Purchase Agreement;
     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor does hereby quitclaim to Grantee all of Grantor’s forty percent (40%) undivided interest as a tenant-in-common in and to the overriding gross value royalty interest payable to Grantor under the terms of that certain Correction Special Warranty Deed Conveying Interest in Overriding Royalty dated as of August 9, 1993 and recorded in Lander County in Book 400 at page 458 and in Eureka County in Book 254 at page 001, which royalty is payable on mineral production from the properties described in Exhibit B hereto, which properties are located in Lander and Eureka Counties, Nevada. Grantor also quitclaims and transfers to Grantee any other royalty interests held directly by Grantor or any affiliate of Grantor payable on any property or property interests within the Area of Interest except those, if any, that were previously offered by Grantor to the Cortez Joint Venture in accordance with the JVA and refused by the Cortez Joint Venture (collectively, the “Royalties”).
     This Conveyance is meant to and shall also convey to Grantee any after-acquired rights, title or interest of Grantor in and to the Royalties other than those that may hereafter be granted pursuant to the Purchase Agreement.
      Excepting, however, the rights of Grantor now existing or hereafter arising pursuant to the Purchase Agreement and pursuant to that certain Rio Tinto Production Royalty Deed of even date herewith, which Rio Tinto Production Royalty Deed reserves to Grantor certain royalty rights with respect to the land within the Area of Interest and is recorded concurrently herewith.
     IN WITNESS WHEREOF, Grantor has executed this Conveyance on the date indicated in the acknowledgement below, but effective as of the date first set forth above.
 	 	 	 	 	 	 	 	 	
 	 	Grantor:	 	 	
 	 	 	 	 	 	 	 	 	
 	 	 	 	KENNECOTT EXPLORATIONS (AUSTRALIA)
 LTD., a Delaware corporation	 	
 	 	 	 	 	 	 	 	 	
 	 	 	 	By	 	 	 	 	
 	 	 	 	 	 	 	 	 	
 	 	 	 	Name	 	 	 	 	
 	 	 	 	 	 	 	 	 	
 	 	 	 	Title	 	 	 	 	
 	 	 	 	 	 	 	 	 	
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STATE OF	 	 	 	)	
 	 	 	 	
 	 	 	 	) ss.	
COUNTY OF	 	 	 	)	
 	 	 	 	 	
          On this            day of                      , 2008, personally appeared before me, a Notary Public,                                           , the                                            of KENNECOTT EXPLORATIONS (AUSTRALIA) LTD., a Delaware corporation, who acknowledged that he executed the above instrument on behalf of said corporation.
 	 	 	
[seal]	 	 	

 	 	NOTARY PUBLIC, residing in	

My commission expires:	 	 	

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Exhibit A
Area of Interest
[Insert metes and bounds perimeter description of the existing AOI]
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Exhibit B
[Insert description of the properties on which the royalty is payable]
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Exhibit N
SELLER’S GUARANTY
     This Seller’s Guaranty (the “ Guaranty ”), made effective as of [ • ], 2008 is made by [           ], a [ • ] corporation (“ Guarantor ”) in favor of Barrick Gold Finance, Inc., a Delaware corporation (“ Beneficiary ”).
RECITALS
     A. Beneficiary and Kennecott Explorations (Australia) Ltd., a Delaware corporation (“ Seller ”) and an [affiliated company] OR [indirect wholly owned subsidiary] of Guarantor, have entered into that certain Purchase Agreement, dated February [ • ], 2008 (together with the exhibits, annexes and documents incorporated therein by reference, and as may be modified from time to time, the “ Purchase Agreement ”), pursuant to which Beneficiary has agreed to purchase all of Seller’s rights, titles and interests in and to the Cortez Venture (subject to the reservation of a royalty, as set forth in the Royalty Deed) from Seller (the “ Transaction ”), all as more fully set forth in the Purchase Agreement.
     B. Capitalized terms used but not defined herein shall have the meanings given to them in the Purchase Agreement.
     C. In consideration of the Purchase Agreement and the benefits to be obtained by Guarantor and Seller thereunder, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Guarantor has agreed to guarantee, all of the liabilities and obligations of Seller under the Agreements, as hereinafter defined.
GUARANTY
     For good and valuable consideration, Guarantor and Beneficiary agree as follows:
     1.  Guaranty . Guarantor unconditionally and irrevocably guarantees to the Beneficiary the due and punctual payment and performance of all obligations, covenants, liabilities, indemnities and other agreements (whether known or unknown, accrued, absolute, contingent, determined, determinable or otherwise, and whether to be performed, or relating to or arising from events, occurrences, actions, omissions, operations, facts, circumstances or matters occurring, existing or asserted, before, at or after the date of this Guaranty) agreed to, made, or owed, by Seller to Beneficiary and its Affiliates and their directors, officers, agents and employees under the Purchase Agreement and any other agreements or documents delivered in connection with the Purchase Agreement (the Purchase Agreement and all such other agreements and documents collectively, the “Agreements”) (collectively, the “ Liabilities and Obligations ”).
     2.  Nature of Guaranty . Guarantor agrees that this Guaranty is an absolute, unconditional, present and continuing guarantee of payment and performance, not of collection, and that its obligations under this Guaranty shall be primary obligations, it being agreed by Guarantor that its obligations under this Guaranty shall not be discharged until the payment and performance in full of the Liabilities and Obligations by Seller or Guarantor. Guarantor

 

expressly waives all rights it may have now or in the future under any statute, or at common law, or at law or in equity, or otherwise, to compel the Beneficiary to proceed in respect of the Liabilities and Obligations against Seller or any other party or against any security for the payment and performance of the Liabilities and Obligations before proceeding against, or as a condition to proceeding against, Guarantor. In no event shall the Beneficiary have any obligation (although it is entitled, at its option) to proceed against Seller before seeking satisfaction from Guarantor. The Beneficiary may proceed under any of the Agreements, prior or subsequent to, or simultaneously with, the enforcement of the Beneficiary’s rights hereunder.
     3.  Waiver . Guarantor unconditionally waives, to the fullest extent permitted by law, (a) notice of any matters described herein, (b) all notices which may be required by statute, rule or law to preserve intact any rights against Guarantor, including, without limitation, any demand, presentment and protest, proof of notice of nonpayment under the Agreements and notice of default or any failure of Seller and its Affiliates and its and their successors and assigns to perform or comply with any term, covenant or condition of the Agreements, (c) any requirement of diligence or to exhaust any remedies or to mitigate damages resulting from default under the Agreements, (d) any defense based on any statute of limitations, and (e) any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety or which might otherwise limit recourse against Guarantor. Beneficiary, in its sole discretion, may, without any prejudice to its rights under this Guaranty, at any time or times, without notice to or the consent of Guarantor, modify or amend (with the consent of the Seller) the Liabilities and Obligations under the Agreements. The provisions of this Guaranty are for the benefit of the Beneficiary, and nothing herein contained shall impair, as between Seller and the Beneficiary, the obligations of Seller under the Agreements.
     4.  Continued Effectiveness . This Guaranty shall remain in full force and effect and continue to be effective in the event any petition is filed by or against Seller or Guarantor for dissolution, liquidation or reorganization; in the event Seller or Guarantor becomes insolvent or makes an assignment for the benefit of creditors; in the event a receiver or trustee is appointed for all or any significant part of Seller’s or Guarantor’s assets; and shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Liabilities and Obligations, or any part hereof, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by the Beneficiary, whether as a “voidable preference,” “fraudulent conveyance,” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Liabilities and Obligations shall be reinstated and deemed reduced only by such amount paid or performed and not so rescinded, reduced, restored or returned.
     5. Miscellaneous .
     (a)  Representations and Warranties . Guarantor hereby represents and warrants to the Beneficiary as of the date hereof that:
     (i) Authority . Guarantor possesses full corporate power and authority to execute and deliver this Guaranty and to guarantee the Liabilities and Obligations in accordance with the provisions hereof. The execution and delivery of this Guaranty has been duly authorized by all requisite corporate action on the part of Guarantor. This Guaranty has
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been duly and validly executed and delivered by Guarantor and constitutes the legal, valid and binding obligation of each of Guarantor, enforceable against Guarantor in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency or other similar laws from time to time in effect which affect the enforcement of creditors’ rights generally and by general principles of equity.
     (ii) No Violation . The execution and delivery of this Guaranty by Guarantor and the performance by Guarantor under this Guaranty do not (a) violate any provision of Guarantor’s certificate of incorporation or by-laws or, (b) violate, in any material respect, any material law or regulation of any Governmental Authority, (c) require any material consent or approval of, or filing with, any Governmental Authority which has not been obtained or (d) result in a material breach of any provision of, or require the consent or approval of any third party which has not been obtained under, the terms of any material contract or agreement to which Guarantor is a party.
     (b)  Succession and Assignment . This Guaranty shall inure to the benefit of the Beneficiary and its successors and assigns and shall be binding on Guarantor and its successors and permitted assigns. Guarantor shall not assign, delegate or otherwise transfer its obligations hereunder, in whole or in part, and any attempt to so transfer in violation of the foregoing shall be void ab initio. Guarantor acknowledges and agrees that Beneficiary may assign its rights hereunder to any of its Affiliates.
     (c)  Headings . The section headings contained in this Guaranty are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Guaranty.
     (d)  Notices . All notices, requests, demands, claims, and other communications hereunder will be in writing. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given if (and then three business days after) it is sent by registered or certified mail, return receipt requested, postage prepaid, and addressed to the intended recipient as set forth below:
If to Beneficiary :
Barrick Gold Finance, Inc.

Attention:
With a copy to:

                                                              
Attention:
If to Guarantor:

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Attention:
With copies to:
Kennecott Explorations (Australia) Ltd.
2711 Centerville Road, Suite 400
Wilmington, Delaware 19808
Attention: President
With a copy to:
Kennecott Explorations (Australia) Ltd.
c/o                                          
224 North 2200 West
Salt Lake City, Utah 84116
Attention: President
Any notice, request, demand, claim, or other communication hereunder may be sent to the intended recipient at the address set forth above using any other means (including personal delivery, expedited courier, messenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice, request, demand, claim, or other communication shall be deemed to have been duly given unless and until it actually is received by the intended recipient. Guarantor’s and Beneficiary’s respective addresses set forth in this Section may be changed by written notice given to the other party in accordance with this Section.
     (e)  Law of Agreement; Exclusive Jurisdiction . This Guaranty shall be interpreted and construed under and in accordance with the law of Nevada applicable to contracts made and to be performed wholly within the State of Nevada, without giving effect to any of the conflicts of law provisions thereunder.
     (f)  Consent To Jurisdiction . For all purposes of this Guaranty, and for all purposes of any claim arising out of or relating to the transactions contemplated hereby or for recognition or enforcement of any judgment, Guarantor hereby submits to the exclusive personal jurisdiction and venue of the courts of the State of Nevada located in Reno, Nevada, and the federal courts of the United States sitting in Reno, Nevada (and any appellate court from any such state or federal court), and hereby irrevocably and unconditionally agrees that all matters with respect to any such claim may be heard and determined in such Nevada court or, to the extent permitted by law, in such federal court. Guarantor agrees that a final judgment in any such claim shall be conclusive and may be enforced in any other jurisdiction by suit on the judgment or in any other manner provided by law. Guarantor hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Guaranty or any related matter in any such Nevada court or federal court sitting in Reno, Nevada and the defense of an inconvenient forum to the maintenance of such claim in any such court.
     (g)  Service of Process . (1) The parties hereto hereby designate, appoint and empower the persons referred to below as their respective authorized agents to accept, receive and
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acknowledge, for and on behalf of each such party and its properties and revenues, service of any and all process which may be served in any action, suit or proceeding of the nature referred to above, which appointment shall be irrevocable during the term of this Guaranty:
      (i) Agent on behalf of Seller:                                                                     ; and
      (ii) Agent on behalf of Beneficiary:                                                                     .
     (2) Each of the parties further agrees that such service of process may be made personally or by delivering a copy of the summons and complaint or other legal process in any such legal suit, action or proceeding to such party in care of its agent designated above at the aforesaid address, and such agent is hereby authorized to accept, receive and acknowledge the same for and on behalf of such party and to admit service and respect thereto; and
     (3) Each party hereto agrees that it will at all times continuously maintain an agent to receive service of process in the United States on behalf of itself and its properties and revenues, and, in the event that for any reason its agent designated above shall not serve as agent to receive service of process on its behalf, each such party shall promptly appoint a successor satisfactory to the other parties, advise the other parties thereof, and deliver to the other parties evidence in writing of the successor agent’s acceptance of such appointment. The foregoing provisions constitute, among other things, a special arrangement for service between the parties to this Guaranty for the purposes of 28 U.S.C. § 1608.
     (h)  WAIVER OF RIGHT TO JURY TRIAL . GUARANTOR AND, BY ITS ACCEPTANCE OF THIS GUARANTY, BENEFICIARY, EACH IRREVOCABLY WAIVES ALL RIGHTS TO A JURY TRIAL IN ANY ACTION, SUIT, OR PROCEEDING OF ANY KIND DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN ANY WAY RELATING TO THIS GUARANTY. THE JURY TRIAL WAIVER CONTAINED IN THIS SECTION IS INTENDED TO APPLY, TO THE FULLEST EXTENT PERMITTED BY LAW, TO ANY AND ALL DISPUTES AND CONTROVERSIES THAT ARISE OUT OF OR IN ANY WAY RELATE TO ANY OR ALL OF THE MATTERS DESCRIBED IN THE PRECEDING SENTENCE, INCLUDING WITHOUT LIMITATION CONTRACT CLAIMS, TORT CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS OF ANY KIND. THIS GUARANTY MAY BE FILED WITH ANY COURT OF COMPETENT JURISDICTION AS GUARANTOR’S WRITTEN CONSENT TO GUARANTOR’S WAVER OF A JURY TRIAL.
     (i)  Amendments and Waivers . No amendment of any provision of this Guaranty shall be valid unless the same shall be in writing and signed by Guarantor and Beneficiary. No waiver by Beneficiary of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
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     (j)  Severability . Any term or provision of this Guaranty that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
     (k)  Construction . Guarantor and Beneficiary have participated jointly in the negotiation and drafting of this Guaranty. In the event an ambiguity or question of intent or interpretation arises, this Guaranty shall be construed as if drafted jointly by Guarantor and Beneficiary and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Guaranty. Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The word “including” shall mean including without limitation
     (l)  Entire Agreement . This Guaranty (including the documents referred to herein), and the Agreements (and Exhibits, Annexes and Schedules thereto) constitute the entire agreement between Guarantor and Beneficiary relating to the Transaction and supersede any other prior understandings, agreements, or representations made by or among the Guarantor or the Beneficiary, written or oral, to the extent they have related in any way to the subject matter hereof.
[ remainder of page intentionally left blank; signature page follows ]
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     IN WITNESS WHEREOF, Guarantor has executed this Guaranty to be effective as of the day and year first above written.
 	 	 	 	 	 	 	
 	 	GUARANTOR:	 	 	

 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 	 	 	
 	 	Name:	 	 	 	 	
 	 	Title:	 	 	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 	 	 	
 	 	Name:	 	 	 	 	
 	 	Title:	 	 	 	 	
ATTEST:
     I,            , in my capacity as [Secretary] of                      , hereby certify that (i)                      is the duly elected, qualified and acting                      of                      , (ii)                      is the duly elected, qualified and acting                      of                      and that (iii) the signatures appearing above are the genuine signatures of each such person.
                                                              
Name:
Title: Secretary,                                                               
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Exhibit O
PURCHASER’S GUARANTY
     This Purchaser’s Guaranty (the “ Guaranty ”), made effective as of [ • ], 2008 is made by [                      ], a [ • ] corporation (“ Guarantor ”) in favor of Kennecott Explorations (Australia) Ltd., a Delaware corporation (“ Beneficiary ”).
RECITALS
     A. Beneficiary and Barrick Gold Finance, Inc., a Delaware corporation (“ Purchaser ”) and an [affiliated company] OR [indirect wholly owned subsidiary] of Guarantor, have entered into that certain Purchase Agreement, dated February [ • ], 2008 (together with the exhibits, annexes and documents incorporated therein by reference, and as may be modified from time to time, the “ Purchase Agreement ”), pursuant to which Beneficiary has agreed to sell all of its rights, titles and interests in and to the Cortez Venture (subject to the reservation of a royalty, as set forth in the Royalty Deed) to Purchaser and Purchaser has agreed to assume certain liabilities and obligations of Beneficiary and its Affiliates with respect to the Cortez Venture (the “ Transaction ”), all as more fully set forth in the Purchase Agreement.
     B. Capitalized terms used but not defined herein shall have the meanings given to them in the Purchase Agreement.
     C. In consideration of the Purchase Agreement and the benefits to be obtained by Guarantor and Purchaser thereunder, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Guarantor has agreed to guarantee, all of the liabilities and obligations of Purchaser under the Agreements, as hereinafter defined.
GUARANTY
     For good and valuable consideration, Guarantor and Beneficiary agree as follows:
     1.  Guaranty. Guarantor unconditionally and irrevocably guarantees to the Beneficiary the due and punctual payment and performance of all obligations, covenants, liabilities, indemnities and other agreements (whether known or unknown, accrued, absolute, contingent, determined, determinable or otherwise, and whether to be performed, or relating to or arising from events, occurrences, actions, omissions, operations, facts, circumstances or matters occurring, existing or asserted, before, at or after the date of this Guaranty) agreed to, made, or owed, by Purchaser to Beneficiary and its Affiliates and their directors, officers, agents and employees under each of the Purchase Agreement and any other agreements or documents delivered in connection with the Purchase Agreement (the Purchase Agreement and all such other agreements and documents, including without limitation, the Assumption Agreement and the Royalty Deed, collectively, the “Agreements”) (collectively, the “Liabilities and Obligations” ).
     2.  Nature of Guaranty. Guarantor agrees that this Guaranty is an absolute, unconditional, present and continuing guarantee of payment and performance, not of collection,

 

and that its obligations under this Guaranty shall be primary obligations, it being agreed by Guarantor that its obligations under this Guaranty shall not be discharged until the payment and performance in full of the Liabilities and Obligations by Purchaser or Guarantor. Guarantor expressly waives all rights it may have now or in the future under any statute, or at common law, or at law or in equity, or otherwise, to compel the Beneficiary to proceed in respect of the Liabilities and Obligations against Purchaser or any other party or against any security for the payment and performance of the Liabilities and Obligations before proceeding against, or as a condition to proceeding against, Guarantor. In no event shall the Beneficiary have any obligation (although it is entitled, at its option) to proceed against Purchaser before seeking satisfaction from Guarantor. The Beneficiary may proceed under any of the Agreements, prior or subsequent to, or simultaneously with, the enforcement of the Beneficiary’s rights hereunder.
     3.  Waiver. Guarantor unconditionally waives, to the fullest extent permitted by law, (a) notice of any matters described herein, (b) all notices which may be required by statute, rule or law to preserve intact any rights against Guarantor, including, without limitation, any demand, presentment and protest, proof of notice of nonpayment under the Agreements and notice of default or any failure of Purchaser and its Affiliates and its and their successors and assigns to perform or comply with any term, covenant or condition of the Agreements, (c) any requirement of diligence or to exhaust any remedies or to mitigate damages resulting from default under the Agreements, (d) any defense based on any statute of limitations, and (e) any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge, release or defense of a guarantor or surety or which might otherwise limit recourse against Guarantor. Beneficiary, in its sole discretion, may, without any prejudice to its rights under this Guaranty, at any time or times, without notice to or the consent of Guarantor, modify or amend (with the consent of the Purchaser) the Liabilities and Obligations under the Agreements. The provisions of this Guaranty are for the benefit of the Beneficiary, and nothing herein contained shall impair, as between Purchaser and the Beneficiary, the obligations of Purchaser under the Agreements.
     4.  Continued Effectiveness. This Guaranty shall remain in full force and effect and continue to be effective in the event any petition is filed by or against Purchaser or Guarantor for dissolution, liquidation or reorganization; in the event Purchaser or Guarantor becomes insolvent or makes an assignment for the benefit of creditors; in the event a receiver or trustee is appointed for all or any significant part of Purchaser’s or Guarantor’s assets; and shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Liabilities and Obligations, or any part hereof, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by the Beneficiary, whether as a “voidable preference,” “fraudulent conveyance,” or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Liabilities and Obligations shall be reinstated and deemed reduced only by such amount paid or performed and not so rescinded, reduced, restored or returned.
     5.  Miscellaneous.
     (a)  Representations and Warranties. Guarantor hereby represents and warrants to the Beneficiary as of the date hereof that:
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     (i) Authority. Guarantor possesses full corporate power and authority to execute and deliver this Guaranty and to guarantee the Liabilities and Obligations in accordance with the provisions hereof. The execution and delivery of this Guaranty has been duly authorized by all requisite corporate action on the part of Guarantor. This Guaranty has been duly and validly executed and delivered by Guarantor and constitutes the legal, valid and binding obligation of each of Guarantor, enforceable against Guarantor in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency or other similar laws from time to time in effect which affect the enforcement of creditors’ rights generally and by general principles of equity.
     (ii)  No Violation. The execution and delivery of this Guaranty by Guarantor and the performance by Guarantor under this Guaranty do not (a) violate any provision of Guarantor’s certificate of incorporation or by-laws or, (b) violate, in any material respect, any material law or regulation of any Governmental Authority, (c) require any material consent or approval of, or filing with, any Governmental Authority which has not been obtained or (d) result in a material breach of any provision of, or require the consent or approval of any third party which has not been obtained under, the terms of any material contract or agreement to which Guarantor is a party.
     (b)  Succession and Assignment. This Guaranty shall inure to the benefit of the Beneficiary and its successors and assigns and shall be binding on Guarantor and its successors and permitted assigns. Guarantor shall not assign, delegate or otherwise transfer its obligations hereunder, in whole or in part, and any attempt to so transfer in violation of the foregoing shall be void ab initio. Guarantor acknowledges and agrees that Beneficiary may assign its rights hereunder to any of its Affiliates.
     (c)  Headings. The section headings contained in this Guaranty are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Guaranty.
     (d)  Notices. All notices, requests, demands, claims, and other communications hereunder will be in writing. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given if (and then three business days after) it is sent by registered or certified mail, return receipt requested, postage prepaid, and addressed to the intended recipient as set forth below:
If to Beneficiary:
Kennecott Explorations (Australia) Ltd.
2711 Centerville Road, Suite 400
Wilmington, Delaware 19808
Attention: President
With a copy to:
Kennecott Explorations (Australia) Ltd.
c/o                     
224 North 2200 West
Salt Lake City, Utah 84116
Attention: President
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If to Guarantor:

                                         
Attention:
With a copy to:

                                         
Attention:
Any notice, request, demand, claim, or other communication hereunder may be sent to the intended recipient at the address set forth above using any other means (including personal delivery, expedited courier, messenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice, request, demand, claim, or other communication shall be deemed to have been duly given unless and until it actually is received by the intended recipient. Guarantor’s and Beneficiary’s respective addresses set forth in this Section may be changed by written notice given to the other party in accordance with this Section.
     (e)  Law of Agreement; Exclusive Jurisdiction. This Guaranty shall be interpreted and construed under and in accordance with the law of Nevada applicable to contracts made and to be performed wholly within the State of Nevada, without giving effect to any of the conflicts of law provisions thereunder.
     (f)  Consent To Jurisdiction. For all purposes of this Guaranty, and for all purposes of any claim arising out of or relating to the transactions contemplated hereby or for recognition or enforcement of any judgment, Guarantor hereby submits to the exclusive personal jurisdiction and venue of the courts of the State of Nevada located in Reno, Nevada, and the federal courts of the United States sitting in Reno, Nevada (and any appellate court from any such state or federal court), and hereby irrevocably and unconditionally agrees that all matters with respect to any such claim may be heard and determined in such Nevada court or, to the extent permitted by law, in such federal court. Guarantor agrees that a final judgment in any such claim shall be conclusive and may be enforced in any other jurisdiction by suit on the judgment or in any other manner provided by law. Guarantor hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Guaranty or any related matter in any such Nevada court or federal court sitting in Reno, Nevada and the defense of an inconvenient forum to the maintenance of such claim in any such court.
     (g)  Service of Process. (1) The parties hereto hereby designate, appoint and empower the persons referred to below as their respective authorized agents to accept, receive and acknowledge, for and on behalf of each such party and its properties and revenues, service of any and all process which may be served in any action, suit or proceeding of the nature referred to
 4 

 

above, which appointment shall be irrevocable during the term of this Guaranty:
     (i) Agent on behalf of Purchaser:                                           ; and
     (ii) Agent on behalf of Beneficiary:                                           .
     (2) Each of the parties further agrees that such service of process may be made personally or by delivering a copy of the summons and complaint or other legal process in any such legal suit, action or proceeding to such party in care of its agent designated above at the aforesaid address, and such agent is hereby authorized to accept, receive and acknowledge the same for and on behalf of such party and to admit service and respect thereto; and
     (3) Each party hereto agrees that it will at all times continuously maintain an agent to receive service of process in the United States on behalf of itself and its properties and revenues, and, in the event that for any reason its agent designated above shall not serve as agent to receive service of process on its behalf, each such party shall promptly appoint a successor satisfactory to the other parties, advise the other parties thereof, and deliver to the other parties evidence in writing of the successor agent’s acceptance of such appointment. The foregoing provisions constitute, among other things, a special arrangement for service between the parties to this Guaranty for the purposes of 28 U.S.C. § 1608.
     (h)  WAIVER OF RIGHT TO JURY TRIAL. GUARANTOR AND, BY ITS ACCEPTANCE OF THIS GUARANTY, BENEFICIARY, EACH IRREVOCABLY WAIVES ALL RIGHTS TO A JURY TRIAL IN ANY ACTION, SUIT, OR PROCEEDING OF ANY KIND DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN ANY WAY RELATING TO THIS GUARANTY. THE JURY TRIAL WAIVER CONTAINED IN THIS SECTION IS INTENDED TO APPLY, TO THE FULLEST EXTENT PERMITTED BY LAW, TO ANY AND ALL DISPUTES AND CONTROVERSIES THAT ARISE OUT OF OR IN ANY WAY RELATE TO ANY OR ALL OF THE MATTERS DESCRIBED IN THE PRECEDING SENTENCE, INCLUDING WITHOUT LIMITATION CONTRACT CLAIMS, TORT CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS OF ANY KIND. THIS GUARANTY MAY BE FILED WITH ANY COURT OF COMPETENT JURISDICTION AS GUARANTOR’S WRITTEN CONSENT TO GUARANTOR’S WAVER OF A JURY TRIAL.
     (i)  Amendments and Waivers. No amendment of any provision of this Guaranty shall be valid unless the same shall be in writing and signed by Guarantor and Beneficiary. No waiver by Beneficiary of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
     (j)  Severability. Any term or provision of this Guaranty that is invalid or
 5 

 

unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
     (k)  Construction. Guarantor and Beneficiary have participated jointly in the negotiation and drafting of this Guaranty. In the event an ambiguity or question of intent or interpretation arises, this Guaranty shall be construed as if drafted jointly by Guarantor and Beneficiary and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Guaranty. Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The word “including” shall mean including without limitation
     (l)  Entire Agreement. This Guaranty (including the documents referred to herein), and the Agreements (and Exhibits, Annexes and Schedules thereto) constitute the entire agreement between Guarantor and Beneficiary relating to the Transaction and supersede any other prior understandings, agreements, or representations made by or among the Guarantor or the Beneficiary, written or oral, to the extent they have related in any way to the subject matter hereof.
[ remainder of page intentionally left blank; signature page follows ]
 6 

 

     IN WITNESS WHEREOF, Guarantor has executed this Guaranty to be effective as of the day and year first above written.
 	 	 	 	 	 	 	
 	 	GUARANTOR:	

 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	Name:	 	 	 	 	
 	 	Title:	 	 	 	 	
 	 	 	 	 	 	 	
 	 	By:	 	 	 	 	
 	 	 	 	 	 	 	
 	 	Name:	 	 	 	 	
 	 	Title:	 	 	 	 	
ATTEST:
     I,                      , in my capacity as [Secretary] of                      , hereby certify that (i)                       is the duly elected, qualified and acting                      of                      , (ii)                      is the duly elected, qualified and acting                      of                      and that (iii) the signatures appearing above are the genuine signatures of each such person.
                                         
Name:
Title: Secretary,                                          
 7 

 

EXHIBIT P
Part 7. The “Cortez Joint Venture Area of Interest” is described as follows:
Beginning at a point which is the southeast corner of section 1, Township 24 North, Range 48 1/2 East, Mt. Diablo Baseline and Meridian (MDBM);
Thence west along the section lines to the northeast corner of section 4, Township 24 North, Range 47 East, (MDBM);
Thence south along the section line to the southeast corner of section 4, Township 24 “North, Range 47 East;
Thence west along the section lines to the southwest corner of section 1, Township 24 North, Range 46 East;
Thence north along the section lines to the northeast corner of section 35, Township 25 North, Range 46 East;
Thence west along the section line to the northwest corner of section 35, Township 25 North, Range 46 East;
Thence north along the section line to the northeast corner of section 27, Township 25 North, Range 46 East;
Thence west along the section line to the northwest corner of section 27, Township 25 North, Range 46 East;
Thence north along the section lines to the northwest corner of section 3, Township 25 North, Range 46 East;
Thence east along the section lines to the southwest corner of section 36, Township 26 North, Range 46 East;
Thence north along the section lines to the northwest corner of section 1, Township 26 North, Range 46 East;
Thence west along the section lines to the southwest corner of section 35, Township 27 North, Range 44 East;
Thence north along the section lines to the northwest corner of section 2, Township 30 North, Range 44 East; .
Thence east along the section lines to the northeast corner of section 4, Township 30 North, Range 47 East;
Thence south along the section lines to the southeast corner of section 33, Township 30 North, Range 47 East;
Thence east along the section lines to the southwest corner of section 33, Township 30 North, Range 50 East;
Thence north along the section lines to the northwest corner of section 9, Township 30 North, Range 50 East;
Thence east along the section lines to the northeast corner of section 12, Township 30 North, Range 50 East;
Thence south along the section lines to the southeast corner of section 36, Township 30 North, Range 50 East;
Thence east along the section line to the northeast corner of section 1, Township 29 North, Range 50 East;
Thence south along the section lines to the northwest corner of section 31, Township 29 North, Range 51 East;
Thence east along the section line to the northeast corner of section 31, Township 29 North, Range 51 East;
Thence south along the section line to the southeast corner of section 31, Township 29 North, Range 51 East;

 

Thence east along the section line to the northeast corner of section 5, Township 28 North, Range 51 East;
Thence south along the section line to the southeast corner of section 5, Township 28 North, Range 51 East;
Thence east along the section line to the northeast corner of section 9, Township 28 North, Range 51 East;
Thence south along the section line to the southeast corner of section 9, Township 28 North, Range 51 East;
Thence west along the section lines to the northeast corner of section 13, Township 28 North, Range 50 East;
Thence south along the section line to the southeast corner of section 13, Township 28 North, Range 50 East;
Thence west along the section line to the northeast corner of section 23, Township 28 North, Range 50 East;
Thence south along the section line to the southeast corner of section 23, Township 28 North, Range 50 East;
Thence east along the section lines to the northeast corner of section 30, Township 28 North, Range 51 East;
Thence south along the section lines to the southeast corner of section 19, Township 27 North, Range 51 East;
Thence west along the section line to the southwest corner of section 24, Township 27 North, Range 50 East;
Thence south along the section lines to the southeast corner of section 35, Township 27 North, Range 50 East;
Thence west along the section line to the southwest corner of section 34, Township 27 North, Range 50 East;
Thence south along the section line to the southeast corner of section 16, Township 26 North, Range 50 East;
Thence west along the section lines to the southwest corner of section 17, Township 26 North, Range 50 East;
Thence south along the section line to the southeast corner of section 19, Township 26 North, Range 50 East;
Thence west along the section line to the northeast corner of section 25, Township 26 North, Range 49 East;
Thence south along” the section line to the southeast corner of section 36, Township 26 North, Range 49 East;
Thence west along the section line to the northeast corner of section 4, Township 25 North, Range 49 East;
Thence south along the section lines to the southeast corner of section 9, Township 25 North, Range 49 East;
Thence west along the section lines to the southeast corner of section 12, Township 25 North, Range 48 1/2 East;
Thence south along the section lines to the point of beginning, which is the southeast corner of section 1, Township 24 North, Range 48 1/2 East.
As of 9/7/05

 

Exhibit R
To
Purchase Agreement
TAX AUDITS
Rio Tinto Group is designated by the IRS as an LMSB taxpayer. As such, Rio Tinto Group is effectively subject to a continuous audit process. The current audit cycle includes the tax years 2003 through 2005. In addition, the tax years 2000 through 2002 are currently at the appeals level with the IRS.
As of the date of this disclosure, Rio Tinto Group has not received any formal notice of income tax audit with respect to any State. Furthermore, as of the date of this disclosure, no member of the Rio Tinto Group is currently under a State Income tax audit. Outside the formal audit process, ongoing informal telephone conversation with certain states continue to take place in the normal course of business.