THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED
IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
ANGLOGOLD ASHANTI HOLDINGS PLC
[
• ]% Notes due 20[ • ]
Guaranteed By
ANGLOGOLD ASHANTI LIMITED
No. [001]
$[ • ]
CUSIP No. [ • ]
ISIN No. [ • ]
ANGLOGOLD ASHANTI HOLDINGS PLC, a company organized under the laws of the Isle of Man (herein
called the “Company”, which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of $[ • ] on [ •
], 20[ • ] and to pay interest thereon from April 28,2010 or from the most recent Interest Payment Date (as defined below) to which interest has been
paid or duly provided for, semi-annually in arrears on April 15, 2010 and October 15, 2010 in each
year, commencing October 15, 2010 (each, an “Interest Payment Date”), at the rate of [ • ]% per
annum, until principal hereof is paid or made available for payment. 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 Note is registered at the close of business on
[date] and [date] each, a “Regular Record Date” for such interest. Any such interest which is
payable, but is not punctually paid or duly provided for, on such Interest Payment Date will
forthwith cease to be payable to such Holder on the relevant Regular Record Date by virtue of
having been such Holder, and such defaulted interest and, if applicable, interest on such defaulted
interest (to the extent lawful) at the rate specified in this Note may be paid by the Company or
the Guarantor, at its election , in each case, as provided in the Indenture.
B-1
Interest on this Note shall be computed on the basis of a 360-day year of twelve 30-day
months.
Payment of the principal of, and interest, if any, on this Note will be made at the office or
agency of the Company maintained for that purpose in New York City, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment of public and
private debts.
Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Authentication Agent
by manual signature of an authorized signatory, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
B-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed manually or in
facsimile.
Dated: [date]
ANGLOGOLD ASHANTI HOLDINGS PLC
By:
Name:
Title:
By:
Name:
Title:
B-3
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Notes of the series designated therein referred to in the within mentioned
Indenture.
THE BANK OF NEW YORK MELLON, as Trustee
By
Authorized Signatory
4
FORM OF GUARANTEE
For value received, ANGLOGOLD ASHANTI LIMITED, a corporation duly organized and existing under
the laws of South Africa (herein called the “Guarantor”, which term includes any successor Person
under the Indenture (the “Indenture”) referred to in the Note on which this Guarantee is endorsed),
has unconditionally guaranteed, pursuant to the terms of the Guarantee contained in Article Sixteen
of the Indenture, the due and punctual payment of the principal of and any premium and interest on
such Note, when and as the same shall become due and payable, whether at the Stated Maturity, by
declaration of acceleration, call for redemption or otherwise, in accordance with the terms of such
Note and the Indenture.
All payments pursuant to this Guarantee shall be made without withholding or deduction for, or
on account of, any present or future taxes, duties, assessments or governmental charges of whatever
nature imposed or levied by or on behalf of the Isle of Man or South Africa or the jurisdiction of
organization of any successor to the Company or the Guarantor, or any political subdivision or
taxing authority thereof or therein, unless such taxes, duties, assessments or governmental charges
are required by the Isle of Man or South Africa or such other jurisdiction or any such subdivision
or authority to be withheld or deducted. In that event, the Guarantor will pay such Additional
Amounts as will result (after deduction of such taxes, duties, assessments or governmental charges
and any additional taxes, duties, assessments or governmental charges payable in respect of such)
in the payment to the Holder of the Note on which this Guarantee is endorsed of the amounts which
would have been payable in respect of the Guarantee thereof had no such withholding or deduction
been required, subject to certain exceptions as set forth in Article Ten of the Indenture.
The obligations of the Guarantor to the Holders of the Notes and to the Trustee pursuant to
the Guarantee and the Indenture are expressly set forth in Article Sixteen of the Indenture, and
reference is hereby made to such Article and Indenture for the precise terms of the Guarantee.
The Guarantee shall not be valid or obligatory for any purpose until the certificate of
authentication on the Note upon which this Guarantee is endorsed shall have been executed by the
Trustee under the Indenture by the manual signature of one of its authorized signatories.
Capitalized terms used herein and not otherwise defined herein have the meanings specified in
the Indenture.
5
IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed.
Dated:
ANGLOGOLD ASHANTI LIMITED
By:
Name:
Title
By:
Name:
Title
6
[REVERSE OF GLOBAL NOTE]
This Note is one of a duly authorized issue of securities of the Company (herein called the
“Note”), issued and to be issued in one or more series under an Indenture, dated as of April 28,2010 (herein called the “Indenture” which term shall have the meaning assigned to it in such
instrument), among the Company, AngloGold Ashanti Limited, as Guarantor (herein called the
“Guarantor”, which term includes any successor Person under the Indenture) and The Bank of New York
Mellon, as Trustee (herein called the “Trustee”, which term includes any other successor trustee
under the Indenture) and reference is hereby made to the Indenture and the Officers’ Certificate
dated as of April 28, 2010 issued pursuant to Section 301 of the Indenture (herein called the
“Officers’ Certificate”) for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Guarantor, the Trustee, and the Holders of the Notes
and of the terms upon which the Notes are, and are to be, authenticated and delivered. This Note
is one of the series designated on the face hereof, initially limited in aggregate principal amount
to U.S.$[ • ].
The Company may, without the consent of the holders of the Notes of any series, issue
additional notes of one or more series having the same ranking and same interest rate, maturity
date redemption terms and other terms as the Notes except for the price to the public and issue
date, provided, however, that no additional notes may be issued unless they are fungible with the
notes for U.S. federal income tax purposes. Any additional notes, together with the Notes, will
constitute a single series of securities under the Indenture. There is no limitation on the amount
of the Notes or other debt securities that the Company may issue under the Indenture.
The Notes will be unsecured and unsubordinated indebtedness of the Company and will rank
equally with all of its other unsecured and unsubordinated indebtedness from time to time
outstanding.
The Notes of this series are issuable only in registered form without coupons in minimum
denominations of $1,000 and integral multiples of $1,000 in excess thereof. The Notes will
initially be issued in the form of one or more global Notes (each, a “Global Note”). Except as
provided in the Indenture, a Global Note shall not be exchangeable for one or more definitive
Notes.
If an Event of Default with respect to Notes of this series occurs and is continuing, the
Trustee or the Holders of not less than 25% in principal amount of the Outstanding Notes of this
series may declare the principal of all of the Notes of this series to be due and payable in the
manner and with the effect provided in the Indenture.
If an Event of Default with respect to the Notes occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the Holders of the Notes
of this series and related coupons by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in the Indenture or in aid of the exercise of any power granted therein,
or to enforce any other proper remedy.
All payments of, or in respect of, principal of and any premium and interest on any Note of
this series, shall be made without withholding or deduction for, or on account of, any present or
future taxes, duties, assessments or governmental charges of whatever nature imposed or levied by
or on behalf of a Taxing Jurisdiction, unless such taxes, duties,
7
assessments or governmental charges are required by such Taxing Jurisdiction to be withheld or
deducted. In that event, the Company or the Guarantor, as applicable, will pay such additional
amounts of, or in respect of, principal and any premium and interest (“Additional Amounts”) as will
result (after deduction of such taxes, duties, assessments or governmental charges and any
additional taxes, duties, assessments or governmental charges payable in respect of such) in the
payment to each Holder of Notes of the amounts which would have been payable in respect of such
Notes or the Guarantees, as the case may be, had no such withholding or deduction been required,
except that no Additional Amounts shall be so payable for or on account of:
(1) any tax, duty, assessment or other governmental charge imposed by any jurisdiction other
than a Taxing Jurisdiction (including the United States or any political subdivision or taxing
authority thereof or therein);
(2) any tax, duty, assessment or other governmental charge which would not have been imposed
but for (A) the existence of any present or former connection between such Holder or a third party
on behalf of such Holder by reason of its (or between a fiduciary, settlor, beneficiary member,
shareholder or possessor of a power over such Holder, if such Holder is an estate, trust,
partnership or corporation) having some present or former connection with a Taxing Jurisdiction
(including being or having been a citizen or resident of a Taxing Jurisdiction or being or having
been engaged in a trade or business or present therein or having or having had a permanent
establishment therein, but not including the mere holding or ownership of a debt security), or (B)
the presentation of such Note or the Guarantee thereof for payment more than 30 days after the date
on which such payment became due or was provided for, whichever is later;
(3) any estate, inheritance, gift, sale, transfer, personal property or similar tax, duty,
assessment or other governmental charge;
(4) any tax, duty, assessment or other governmental charge which is payable otherwise than by
withholding or deduction from payments of (or in respect of) principal of or any premium or
interest on the Notes or the Guarantees thereof;
(5) any tax, duty, assessment or other governmental charge that is imposed or withheld by
reason of the failure to comply by the Holder or the beneficial owner of a Note with a request of
the Company or the Guarantor addressed to the Holder (A) to provide information concerning the
nationality, residence or identity of the Holder or such beneficial owner or (B) to make any
declaration or other similar claim or satisfy any information or reporting requirement, which, in
the case of (A) or (B), is required or imposed by statute, treaty, regulation or administrative
practice of the Taxing Jurisdiction as a precondition to exemption from all or part of such tax,
assessment or other governmental charge;
(6) any withholding or deduction that is imposed on a payment to an individual and required to
be made pursuant to any European Union Directive on the taxation of savings implementing the
conclusions of the ECOFIN (European Union Economic and Finance Ministers) Counsel Meeting of 26-27
November 2000 or any law implementing or complying with or introduced in order to conform to such
Directive; or
(7) any combination of items (1), (2), (3), (4), (5) and (6).
8
Additionally, Additional Amounts shall not be paid with respect to any payment in respect of
any Note to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of
such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of
such partnership or a beneficial owner would not have been entitled to such Additional Amounts had
it been the Holder of such Note.
References herein to the payment of the principal of or any premium or interest on, or in
respect of, any Note of this series (or any payments pursuant to the Guarantee thereof) 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 pursuant to
the provisions herein and express mention of the payment of Additional Amounts in any provisions
hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
The provisions herein shall apply mutatis mutandis to any withholding or deduction for or on
account of any present or future taxes, assessments or governmental charges of whatever nature of
any jurisdiction in which any successor Person to the Company or the Guarantor is organized, or any
political subdivision or taxing authority thereof or therein.
The Notes of this series are redeemable at the option of the Company or the Guarantor (or
their successors) in whole but not in part at any time at a Redemption Price equal to the principal
amount thereof plus accrued interest to the date fixed for redemption (except in the case of
Outstanding Original Issue Discount Securities which may be redeemed at the Redemption Price
specified by the terms of such series of Notes) if, (i) the Company or the Guarantor is or would be
required to pay Additional Amounts as a result of any change in or amendment to the laws or any
regulations or rulings promulgated thereunder of a Taxing Jurisdiction or any change in the
official application or interpretation of such laws, regulations or rulings, or any change in the
official application or interpretation of, or any execution of or amendment to, any treaty or
treaties affecting taxation to which a Taxing Jurisdiction is a party, which change, execution or
amendment becomes effective on or after the date of issuance of this series on April 28, 2010 (or
in the case of a successor Person to the Company or the Guarantor, the date on which such successor
Person became such or in the case of an assumption by the Guarantor or its Subsidiaries of
obligations of the Company under the Notes, the date of such assumption), or (ii) as a result of
any change in the official application or interpretation of, or any execution of or amendment to,
any treaty or treaties affecting taxation to which a Taxing Jurisdiction is a party, which change,
execution or amendment is proposed and becomes effective on or after a date on which the Guarantor
or any of its Subsidiaries (an “Intercompany Debtor”) borrows money from the Company, the
Intercompany Debtor is or would be required to deduct or withhold tax on any payment to the Company
to enable the Company to make any payment of principal, premium, if any, or interest, and the
payment of such Additional Amounts, in the case of clause (i), or such deductions or withholding,
in the case of clause (ii), cannot be avoided by the use of any reasonable measures available to
the Company, the Guarantor or the Intercompany Debtor. Prior to the giving of notice of such
redemption, the Company will deliver to the Trustee an Officers’ Certificate, stating that the
Company is entitled to effect such redemption and setting forth in reasonable detail a statement of
circumstances showing that the conditions precedent to the right of the Company to redeem such
Notes pursuant to the Indenture have been satisfied.
The Company or the Guarantor may redeem the Notes of this series in whole or in part, at its
option at any time and from time to time at a Redemption Price equal to the greater
9
of (i) 100% of the principal amount of the Notes of such series to be redeemed and (ii) the
sum of the present values of the Remaining Scheduled Payments of principal and interest on the
Notes of such series (excluding any portion of such payments of interest accrued or unpaid as of
the date of the redemption) discounted to the Redemption Date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate, plus the Make-whole Spread,
plus, in each case, accrued and unpaid interest on the principal amount of the Notes of this series
to be redeemed to the Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the
semiannual equivalent yield to maturity or interpolated maturity (on a day count basis) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption
Date.
“Comparable Treasury Issue” means the U.S. Treasury security or securities selected by an
Independent Investment Banker as having an actual or interpolated maturity comparable to the
remaining term of such series of the Notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new issues of corporate
debt securities of a comparable maturity to the remaining term of such series of the Notes.
“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the
Company.
“Comparable Treasury Price” means, with respect to any Redemption Date, (A) the average of the
Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (B) if the Company obtains fewer than four
such Reference Treasury Dealer Quotations, the average of all such quotations.
“Reference Treasury Dealer” means each of Barclays Capital Inc., Goldman, Sachs & Co. or their
affiliates that are primary U.S. Government securities dealers and two other primary U.S.
Government securities dealers in New York City selected by the Company, and their respective
successors; provided, however, that if any of the foregoing or their affiliates shall cease to be a
primary U.S. Government securities dealer in New York City, the Company shall substitute therefor
another such primary U.S. Government securities dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Guarantor, 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 us by such Reference Treasury Dealer at 3:30 p.m. New York City time on the
third business day preceding such Redemption Date.
“Make-whole Spread” means 25 basis points with respect to the 2020 Notes and 30 basis points
with respect to the 2040 Notes.
The Company will mail notice of any redemption at least 30 days but not more than 60 days
before the Redemption Date to each Holder of the Notes of this series to be redeemed or the Trustee
shall be requested to send such notice of redemption to each holder of Notes to be redeemed in the
name of the Company at its expense. If fewer than all of the Notes of this
10
series are to be redeemed, the Notes of this series to be redeemed shall be selected by the
Trustee by lot or any other such method as the Trustee deems to be fair and appropriate.
Unless the Company or the Guarantor defaults in payment of the Redemption Price, on and after
the Redemption Date, interest will cease to accrue on the Notes or portions thereof called for
redemption.
If a Change of Control Repurchase Event occurs in respect of the Notes of this series, unless
either the Company or the Guarantor has exercised its right to redeem the Notes of this series of
notes as described above, the Company will make an offer to each Holder of the Notes of this series
to repurchase all or any part (in minimal denominations of $1,000 and integral multiples of $1,000
in excess thereof) of that Holder’s Notes of this series at a repurchase price in cash equal to 101
% of the aggregate principal amount of the Notes of this series plus any accrued and unpaid
interest on the Notes repurchased to, but not including, the date of repurchase. Within 30 days
following any Change of Control Repurchase Event or, at the option of the Company, prior to any
Change of Control, but after the public announcement of the proposed Change of Control, the Company
will mail a notice to each Holder, with a copy to the Trustee, describing the transaction or
transactions that constitute or may constitute the Change of Control Repurchase Event and offering
to repurchase the Notes of this series on the payment date specified in the notice, which date will
be no earlier than 30 days and no later than 60 days from the date such notice is mailed, other
than as may be required by law. The notice shall, if mailed prior to the date of consummation of
the Change of Control, state that the offer to purchase is conditioned on a Change of Control
Repurchase Event occurring on or prior to the payment date specified in the notice. Holders of the
Notes of this series electing to have Notes of this series purchased pursuant to a Change of
Control Repurchase Event offer will be required to surrender their Notes of this series, with the
form entitled “Option of Holder to Elect Purchase” on the reverse of this Note completed, to the
Paying Agent at the address specified in the notice, or transfer their Notes of this series to the
Paying Agent by book-entry transfer pursuant to the applicable procedures of the Paying Agent,
prior to the close of business on the third business day prior to the repurchase payment date. The
Company will comply with the requirements of Rule 14e-1 under the Securities Exchange Act of 1934,
as amended, (the “Securities Exchange Act”) and any other securities laws and regulations
thereunder to the extent those laws and regulations are applicable in connection with the
repurchase of the Notes of this series as a result of a Change of Control Repurchase Event. To the
extent that the provisions of any applicable securities or corporate laws or
regulations conflict with the Change of Control Repurchase Event provisions of the Notes of
this series, the Company will comply with the applicable securities or corporate laws and
regulations and will not be deemed to have breached its obligations under the Change of Control
Repurchase Event provisions of the Notes of this series by virtue of such conflict.
On the repurchase date following a Change of Control Repurchase Event, the Company will, to
the extent lawful:
(1) accept for payment all Notes of this series or portions of the Notes of this series
properly tendered pursuant to its offer;
(2) deposit with the Paying Agent an amount equal to the aggregate purchase price in respect
of all the Notes of this series or portions of Notes of this series properly tendered; and
11
(3) deliver or cause to be delivered to the Trustee the Notes of this series properly
accepted, together with an Officers’ Certificate stating the aggregate principal amount of Notes of
this series being purchased by the Company.
The Paying Agent will promptly mail to each Holder of Notes of this series properly tendered
the purchase price for the Notes of this series (or make payment through the Depositary), and the
Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each
Holder a new Note of this series equal in principal amount to any unpurchased portion of any Notes
of this series surrendered; provided, however, that each new Note of this series will be in a
minimum principal amount of $1,000 and integral multiples of $1,000 in excess thereof.
The Company will not be required to make an offer to repurchase the Notes of this series
issued by it upon a Change of Control Repurchase Event if a third party makes such an offer in the
manner, at the times and otherwise in compliance with the requirements for an offer made by the
Company and such third party purchases all Notes of this series properly tendered and not withdrawn
under its offer.
“Change of Control” means the occurrence of any of the following:
(1) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than
by way of merger, scheme of arrangement, amalgamation or consolidation), in one or a series of
related transactions, of all or substantially all of the assets of the Guarantor and its
subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d)(3) of the
Securities Exchange Act) other than to the Guarantor or one of its subsidiaries;
(2) the consummation of any transaction (including, without limitation, any merger, scheme of
arrangement, amalgamation or consolidation) the result of which is that any “person” (as that term
is used in Section 13(d)(3) of the Securities Exchange Act) (other than a subsidiary of the
Guarantor) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Securities
Exchange Act), directly or indirectly, of more than 50% of the combined voting power of the
Guarantor’s Voting Stock or other Voting Stock into which the Guarantor’s Voting Stock is
reclassified, consolidated, exchanged or changed measured by voting power rather than number of
shares;
(3) the Guarantor consolidates with, or merges with or into, or enters into a scheme of arrangement
with or amalgamates with, any “person” (as that term is used in Section 13(d)(3) of the Securities
Exchange Act), or any person consolidates with, or merges with or into, or enters into a plan or
arrangement with, the Guarantor, in any such event pursuant to a transaction in which any of the
outstanding Voting Stock of the Guarantor or such other person is converted into or exchanged for
cash, securities or other property, other than any such transaction where the shares of the Voting
Stock of the Guarantor outstanding immediately prior to such transaction constitute, or are
converted into or exchanged for, a majority
of the Voting Stock of the surviving person or any direct or indirect parent company of the
surviving person immediately after giving effect to such transaction;
(4) the first day on which the majority of the members of the Board of Directors of the
Guarantor cease to be continuing directors; or
(5) the adoption of a plan relating to the liquidation or dissolution of the Guarantor.
12
Notwithstanding the foregoing, a transaction will not be deemed to involve a change of control
if (1) the Guarantor becomes a direct or indirect wholly-owned subsidiary of a holding company and
(2)(A) the direct or indirect holders of the Voting Stock of such holding company immediately
following that transaction are substantially the same as the holders of the Guarantor’s Voting
Stock immediately prior to that transaction or (B) immediately following that transaction, no
“person” (as that term is used in Section 13(d)(3) of the Securities Exchange Act) (other than a
holding company satisfying the requirements of this sentence) is the beneficial owner, directly or
indirectly, of more than 50% of the Voting Stock of such holding company.
“Change of Control Repurchase Event” means, provided the Notes of this series are rated
Investment Grade by each of the Rating Agencies immediately prior to the occurrence of the Change
of Control or the public notice of the intention by the Guarantor to effect the Change of Control,
as the case may be, the Notes of this series cease to be rated Investment Grade by each of the
Rating Agencies on any date during the 60-day period (which period shall be extended so long as the
rating of the applicable series of notes is under publicly announced consideration for a possible
downgrade by any of the Rating Agencies) (the “Trigger Period”) after the earlier of (1) the
occurrence of a Change of Control; and (2) public notice of the intention by the Guarantor to
effect a Change of Control; provided, however, that a Change of Control Repurchase Event shall be
deemed not to have occurred if (A) a Rating Agency that has reduced its rating of the Notes of this
series below Investment Grade during the Trigger Period does not announce or publicly confirm or
inform the Trustee in writing at the Company’s request that the reduction was the result, in whole
or in part, of any event or circumstance comprised from or arising as a result of the applicable
Change of Control (regardless of whether that Change of Control shall then have occurred) or (B) a
rating of the Notes of this series by one of the Rating Agencies is within the Trigger Period
subsequently upgraded to an Investment Grade credit rating. Notwithstanding the foregoing, a Change
of Control Repurchase Event will be deemed not to have occurred in connection with any particular
Change of Control unless and until such Change of Control has actually been consummated.
“Continuing Director” means, as of any date of determination, any member of the Board of
Directors of the Guarantor who:
(1) was a member of such Board of Directors on the date of the closing of this offering; or
(2) was nominated for election, elected or appointed to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of such Board of Directors at
the time of such nomination, election or appointment (either by a specific vote or by approval of
the Guarantor’s proxy statement in which such member was named as a nominee for election as a
director, without objection to such nomination).
“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any
successor rating categories of Moody’s); a rating of BBB- or better by S&P (or its equivalent under
any successor rating categories of S&P); and the equivalent Investment Grade credit rating from any
additional Rating Agency or Rating Agencies selected by the Guarantor as a replacement rating
agency or replacement ratings agencies.
“Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its
successors.
13
“Rating Agency” means each of Moody’s and S&P; provided, however, that if either Moody’s or
S&P ceases to rate the Notes of this series or fails to make a rating of the Notes of this series
publicly available for reasons outside of the Guarantor’s control, the Guarantor may select (as
certified by a resolution of the Guarantor’s board of directors) a “nationally recognized
statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the
Securities Exchange Act, as a replacement agency for Moody’s or S&P, or both of them, as the case
may be.
“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.,
and its successors.
“Voting Stock” of any specified “person” (as that term is used in Section 13(d)(3) of the
Securities Exchange Act) as of any date means the capital stock of such person that is at the time
entitled to vote generally in the election of the board of directors of such person.
The Indenture contains provisions for defeasance at any time of the entire indebtedness on
this Note upon compliance by the Company with certain conditions set forth thereon, which
provisions apply to this Note.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company or the Guarantor and the rights of
the Holders of the Notes of each series to be affected under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a majority in principal amount of the
Notes at the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount of the Notes of each
series at the time Outstanding, on behalf of the Holders of all Notes of such series to waive
compliance by the Company or the Guarantor with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder
of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
As set forth in, and subject to, the provisions of the Indenture, no Holder of any Note of
this series or any related coupon shall have any right to institute any proceeding, judicial or
otherwise, with respect to the Indenture, or for the appointment of a receiver or trustee, or for
any other remedy hereunder, unless (i) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Notes of this series; (ii) the Holders
of not less than 25% in principal amount of the Outstanding Notes of this series shall have made
written request to the Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee; (iii) such Holder or Holders offer to the Trustee indemnity reasonably
satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in
compliance with such request; (iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and (v) no direction
inconsistent with such written request has been given to the Trustee during such 60-day period by
the Holders of a majority in principal amount of the Outstanding Notes of this series; it being
understood and intended that no one or more of such Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of the Indenture to affect, disturb or
prejudice the rights of any other such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any
14
right under the Indenture, except in the manner provided in the Indenture and for the equal
and ratable benefit of all such Holders of Notes of this series.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, or the Guarantor which is absolute and
unconditional, to pay the principal of, and interest, if any, on this Note at the time, place and
rate, and in the coin or currency, herein prescribed or to convert this Note as provided in the
Indenture.
No service charge shall be made for any such registration of transfer or exchange, but the
Company, the Guarantor, or the Trustee may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to due presentation of this Note for registration of transfer, the Company, the
Guarantor, the Trustee, and any agent of the Company or the Guarantor or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all purposes, whether or not
this Note be overdue, and none of the Company, the Guarantor, the Trustee, or any such agent shall
be affected by notice to the contrary. None of the Company, the Guarantor, the Trustee, any Paying
Agent or the Security Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership interests of a Note in
global form or for maintaining, supervising or reviewing any records relating to such beneficial
ownership interests. Nothing shall prevent the Company, the Guarantor, the Trustee from giving
effect to any written certification, proxy or other authorization furnished by any depositary, as a
Holder, with respect to such global 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.
This Note shall be governed by and construed in accordance with the laws of the State of New
York.
Unless otherwise defined herein, all terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the Indenture or the Officers’ Certificate.
To the extent any provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling.
15
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to the Change of
Control Repurchase Event provisions of this Note, check the following box:
o Purchase pursuant to Change of Control Repurchase Event
If you want to elect to have only part of this Note purchased by the Company pursuant to the
Change of Control Repurchase Event provisions of this Note, state the amount:
$
Date:
Your Signature:
(Sign exactly as your name appears on the other side of the Note)
Signature Guarantee:
Signature must be guaranteed by a participant
in a recognized signature guarantee medallion
program or other signature guarantor acceptable
to the Trustee.
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SCHEDULE OF PRINCIPAL AMOUNT
The
initial principal amount of this Note shall be $[ • ]. The following
decreases/increases in the principal amount of this Note have been made:
Total Principal
Decrease in
Increase in
Amount
Notation Made
Date of
Principal
Principal
Following such
by or on Behalf
Decrease/Increase
Amount
Amount
Decrease/Increase
of Trustee
17
Dates Referenced Herein and Documents Incorporated by Reference