SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
N\A
FREEPORT-MCMORAN RESOURCES PARTNERS, LIMITED PARTNERSHIP
(Exact name of registrant as specified in its charter)
Delaware 1-9164 72-1067072
(State or other jurisdiction (Commission File (I.R.S. Employer
of incorporation) Number) Identification No.)
1615 Poydras Street, New Orleans, Louisiana 70112
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (504) 582-4000
<PAGE>
Item 7. Financial Statements, Pro Forma Information and
Exhibits.
The exhibits set forth below are filed herewith. Exhibits
4.1, 23.1 and 25.1 relate to the Registrant's Registration
Statement on Form S-3, Registration No. 33-37441.
4.1 Form of Senior Indenture from FRP to Chemical Bank, as
Trustee.
10.1 Amendment and Agreement dated as of January 23, 1996 to the
Amended and Restated Partnership Agreement dated May 26, 1995 by
and among IMC - Agrico GP Company, Agrico, Limited Partnership,
IMC - Agrico MP, Inc., IMC Global Operations, Inc. and IMC-
Agrico Company.
10.2 First Amendment dated as of January 10, 1996 to the Credit
Agreement dated as of June 30. 1995 among FRP, Freeport- McMoRan
Inc., Chemical Bank, as administrative and collateral agent and
The Chase Manhattan Bank (National Association), as documentary
agent.
23.1 Consent of Jones, Walker, Waechter, Poitevent, Carrere &
Dengre, L.L.P.
25.1 Statement of Eligibility under the Trust Indenture Act of
1939 of Chemical Bank, on Form T-1, dated February 6, 1996.
99.1 News Release of FRP dated January 23, 1996.
99.2 Report of Ernst & Young LLP.
<PAGE>
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.
FREEPORT-McMoran RESOURCE PARTNERS,
LIMITED PARTNERSHIP
By: /s/ Nancy D. Bonner
_______________________________
Name: Nancy D. Bonner
Title: Controller
Dated: February 13, 1996
FREEPORT-McMoRan RESOURCE PARTNERS,
LIMITED PARTNERSHIP
AND
CHEMICAL BANK, Trustee
Senior Indenture
Dated as of February _____, 1996
CROSS REFERENCE SHEET[*]
____________________
Between
Provisions of Trust Indenture Act of 1939 and Indenture to
be dated as of February _____, 1996 between FREEPORT-McMoRan
RESOURCE PARTNERS, LIMITED PARTNERSHIP and CHEMICAL BANK,
Trustee:
Section of the Act
Section of the Indenture
310(a)(1), (2) and (5) 6.9
310(a)(3) and (4) Inapplicable
310(b) 6.8 and 6.10(a), (b) and (d)
310(c) Inapplicable
311(a) 6.13(a) and (c)(1) and (2)
311(b) 6.13(b) and (c)
311(c) Inapplicable
312(a) 4.1 and 4.2(a)
312(b) 4.2(a) and (b)(i) and (ii)
312(c) 4.2(c)
313(a) 4.4(a)(i), (ii), (iii), (iv),
(v), (vi) and (vii)
313(a)(6) Inapplicable
313(b)(1) Inapplicable
313(b)(2) 4.4(b)
313(c) 4.4(c)
313(d) 4.4(d)
314(a) 4.3
314(a)(4) 4.3(d)
314(b) Inapplicable
314(c)(1) and (2) 11.5
314(c)(3) Inapplicable
314(d) Inapplicable
314(e) 11.5
314(f) Inapplicable
315(a), (c) and (d) 6.1
315(b) 5.11
315(e) 5.12
316(a)(1) 5.9 and 5.10
316(a)(2) Not Required
316(a) (last sentence) 7.4
316(b) 5.7
316(c) 7.6
317(a) 5.2
317(b) 3.4(a) and (b)
318(a) and (c) 11.7
**FOOTNOTES**
[*]:This Cross Reference Sheet is not part of the Indenture.
TABLE OF CONTENTS
Section Page
PARTIES
RECITALS
Authorization of Indenture
Compliance With Legal Requirements
Purpose of and Consideration for Indenture
ARTICLE ONE - DEFINITIONS
1.1 Certain Terms Defined
Administrative Managing General Partner
Authenticating Agent
Authorized Newspaper
Board of Directors
Board Resolution
Business Day
Commission
Composite Rate
Corporate Trust Office
Coupon
Depositary
Dollar
ECU
Event of Default
Foreign Currency
Holder, Holder of Securities, Securityholder
Indebtedness
Indenture
Interest
Issuer
Issuer Order
Judgment Currency
Officer's Certificate
Opinion of Counsel
original issue date
Original Issue Discount Security
Outstanding
Periodic Offering
Person
principal
record date
Registered Global Security
Registered Security
Required Currency
Responsible Officer
Security or Securities
Trust Indenture Act of 1939
Trustee
Unregistered Security
U.S. Government Obligations
Yield to Maturity
ARTICLE TWO - SECURITIES
2.1 Forms Generally
2.2 Form of Trustee's Certificate of Authentication
2.3 Amount Unlimited; Issuable in Series
2.4 Authentication and Delivery of Securities
2.5 Execution of Securities
2.6 Certificate of Authentication
2.7 Denomination and Date of Securities;
Payments of Interest
2.8 Registration, Transfer and Exchange
2.9 Mutilated, Defaced, Destroyed, Lost and
Stolen Securities
2.10 Cancellation of Securities; Disposition Thereof
2.11 Temporary Securities
ARTICLE THREE - COVENANTS OF THE ISSUER
3.1 Payment of Principal and Interest
3.2 Offices for Payments, etc.
3.3 Appointment to Fill a Vacancy in Office of Trustee
3.4 Paying Agents
3.5 Written Statement to Trustee
3.6 Luxembourg Publications
ARTICLE FOUR - SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
4.1 Issuer to Furnish Trustee Information as to
Names and Addresses of Securityholders
4.2 Preservation and Disclosure of Securityholders
Lists
4.3 Reports by the Issuer
4.4 Reports by the Trustee
ARTICLE FIVE - REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT
5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default
5.2 Collection of Indebtedness by Trustee; Trustee May
Prove Debt
5.3 Application of Proceeds
5.4 Suits for Enforcement
5.5 Restoration of Rights on Abandonment of
Proceedings
5.6 Limitations on Suits by Securityholders
5.7 Unconditional Right of Securityholders to
Institute Certain Suits
5.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default
5.9 Control by Holders of Securities
5.10 Waiver of Past Defaults
5.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances
5.12 Right of Court to Require Filing of Undertaking to
Pay Costs
ARTICLE SIX - CONCERNING THE TRUSTEE
6.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default
6.2 Certain Rights of the Trustee
6.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof
6.4 Trustee and Agents May Hold Securities or Coupons;
Collections, etc.
6.5 Moneys Held by Trustee
6.6 Compensation and Indemnification of Trustee and
Its Prior Claim
6.7 Right of Trustee to Rely on Officer's Certificate,
etc.
6.8 Qualification of Trustee; Conflicting Interests
6.9 Persons Eligible for Appointment as Trustee
6.10 Resignation and Removal; Appointment of Successor
Trustee
6.11 Acceptance of Appointment by Successor Trustee
6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee
6.13 Preferential Collection of Claims Against the
Issuer
6.14 Appointment of Authenticating Agent
ARTICLE SEVEN - CONCERNING THE SECURITYHOLDERS
7.1 Evidence of Action Taken by Securityholders
7.2 Proof of Execution of Instruments and of Holding
of Securities
7.3 Holders to be Treated as Owners
7.4 Securities Owned by Issuer Deemed Not Outstanding
7.5 Right of Revocation of Action Taken
7.6 Record Date for Consents and Waivers
ARTICLE EIGHT - SUPPLEMENTAL INDENTURES
8.1 Supplemental Indentures Without Consent of
Securityholders
8.2 Supplemental Indentures With Consent of
Securityholders
8.3 Effect of Supplemental Indenture
8.4 Documents to be Given to Trustee
8.5 Notation on Securities in Respect of Supplemental
Indentures
ARTICLE NINE - CONSOLIDATION, MERGER, SALE OR CONVEYANCE
9.1 Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions
9.2 Successor Entity Substituted
9.3 Opinion of Counsel Delivered to Trustee
ARTICLE TEN - SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
10.1 Satisfaction and Discharge of Indenture
10.2 Application by Trustee of Funds Deposited for
Payment of Securities
10.3 Repayment of Moneys Held by Paying Agent
10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years
10.5 Indemnity for U.S. Government Obligations
ARTICLE ELEVEN - MISCELLANEOUS PROVISIONS
11.1 Limited Partners, General Partners, Incorporators,
Stockholders, Officers and Directors of Issuer
Exempt from Individual Liability
11.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities and Coupons
11.3 Successors and Assigns of Issuer Bound by
Indenture
11.4 Notices and Demands on Issuer, Trustee and Holders
of Securities and Coupons
11.5 Officer's Certificates and Opinions of Counsel;
Statements to be Contained Therein
11.6 Payments Due on Saturdays, Sundays and Holidays
11.7 Conflict of Any Provision of Indenture With Trust
Indenture Act of 1939
11.8 New York Law to Govern
11.9 Counterparts
11.10 Effect of Headings
11.11 Securities in a Foreign Currency or in ECU
11.12 Judgment Currency
ARTICLE TWELVE - REDEMPTION OF SECURITIES AND SINKING FUNDS
12.1 Applicability of Article
12.2 Notice of Redemption; Partial Redemptions
12.3 Payment of Securities Called for Redemption
12.4 Exclusion of Certain Securities From Eligibility
for Selection for Redemption
12.5 Mandatory and Optional Sinking Funds
TESTIMONIUM
SIGNATURES
<PAGE>
THIS INDENTURE, dated as of February _____, 1996, between
FREEPORT-McMoRan RESOURCE PARTNERS, LIMITED PARTNERSHIP, a
Delaware limited partnership (the "Issuer"), and CHEMICAL BANK,
as trustee (the "Trustee"),
W I T N E S S E T H
WHEREAS, the Issuer has duly authorized the issue from time
to time of its unsecured debentures, notes or other evidences of
indebtedness to be issued in one or more series (the
"Securities") up to such principal amount or amounts as may from
time to time be authorized in accordance with the terms of this
Indenture;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for
the authentication, delivery and administration of the
Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer and the Trustee
mutually covenant and agree for the equal and proportionate
benefit of the respective holders from time to time of the
Securities and of the coupons, if any, appertaining thereto as
follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms
(except as otherwise expressly provided or unless the context
otherwise clearly requires) for all purposes of this Indenture
and of any indenture supplemental hereto shall have the
respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture
Act of 1939 or the definitions of which in the Securities Act of
1933 are referred to in the Trust Indenture Act of 1939,
including terms defined therein by reference to the Securities
Act of 1933 (except as herein otherwise expressly provided or
unless the context otherwise requires), shall have the meanings
assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of this Indenture. All
accounting terms used herein and not expressly defined shall have
the meanings assigned to such terms in accordance with generally
accepted accounting principles, and the term "generally accepted
accounting principles" means such accounting principles as are
generally accepted at the time of any computation. The words
"herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms
defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular.
"Administrative Managing General Partner" means Freeport McMoRan
Inc., a Delaware corporation, as Administrative Managing General
Partner of the Issuer, and any successor thereto as Administrative
Managing General Partner of the Issuer.
"Authenticating Agent" shall have the meaning set forth in
Section 6.14.
"Authorized Newspaper" means a newspaper (which, in the case
of The City of New York, will, if practicable, be The Wall Street
Journal (Eastern Edition), in the case of the United Kingdom,
will, if practicable, be the Financial Times (London Edition)
and, in the case of Luxembourg, will, if practicable, be the
Luxemburger Wort) published in an official language of the
country of publication customarily published at least once a day
for at least five days in each calendar week and of general
circulation in The City of New York, the United Kingdom or in
Luxembourg, as applicable. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or
other notice in lieu thereof which is made or given with the
approval of the Trustee shall constitute a sufficient publication
of such notice.
"Board of Directors" means either the Board of Directors of
the Administrative General Partner or any committee of such Board
duly authorized to act hereunder on its behalf.
"Board Resolution" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the
Administrative Managing General Partner to have been duly adopted
or consented to by the Board of Directors and to be in full force
and effect, and delivered to the Trustee.
"Business Day" means, with respect to any Security, a day
that in the city (or in any of the cities, if more than one) in
which amounts are payable, as specified in the form of such
Security, is not a day on which banking institutions are
authorized or required by law or regulation to close.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities
Exchange Act of 1934, or if at any time after the execution and
delivery of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Composite Rate" means, at any time, the rate of interest,
per annum, compounded semiannually, equal to the sum of the rates
of interest borne by the Securities of each series (as specified
on the face of the Securities of each series, provided, that, in
the case of the Securities with variable rates of interest, the
interest rate to be used in calculating the Composite Rate shall
be the interest rate applicable to such Securities at the
beginning of the year in which the Composite Rate is being
determined and, provided, further, that, in the case of
Securities which do not bear interest, the interest rate to be
used in calculating the Composite Rate shall be a rate equal to
the yield to maturity on such Securities, calculated at the time
of issuance of such Securities) multiplied, in the case of each
series of Securities, by the percentage of the aggregate
principal amount of the Securities of all series Outstanding
represented by the Outstanding Securities of such series. For
the purposes of this calculation, the aggregate principal amounts
of Outstanding Securities that are denominated in a foreign
currency, shall be calculated in the manner set forth in Section
11.11.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any
particular time, be principally administered, which office is, at
the date as of which this Indenture is dated, located in The City
of New York.
"Coupon" means any interest coupon appertaining to a
Security.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered
Global Securities, the Person designated as Depositary by the
Issuer pursuant to Section 2.3 until a successor Depositary shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean or include each
Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with
respect to the Securities of any such series shall mean the
Depositary with respect to the Registered Global Securities of
that series.
"Dollar" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment
of public and private debts.
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of European Communities.
"Event of Default" means any event or condition specified as
such in Section 5.1.
"Foreign Currency" means a currency issued by the government
of a country other than the United States.
"Holder", "Holder of Securities", "Securityholder" or other
similar terms mean (a) in the case of any Registered Security,
the Person in whose name such Security is registered in the
security register kept by the Issuer for that purpose in
accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such security, or any Coupon
appertaining thereto, as the case may be.
"Indebtedness" shall have the meaning set forth in Section
5.1.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as
so amended or supplemented or both, and shall include the forms
and terms of particular series of Securities established as
contemplated hereunder.
"Interest" means, when used with respect to non-interest
bearing Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in Article Six)
Freeport-McMoRan Resource Partners, Limited Partnership, a
Delaware limited partnership and, subject to Article Nine, its
successors and assigns.
"Issuer Order" means a written statement, request or order
of the Issuer signed by the Administrative Managing General Partner
which is signed in its name by the chairman of the Board of
Directors, the president, any vice president or the treasurer of the
Administrative Managing General Partner.
"Judgment Currency" shall have the meaning set forth in
Section 11.12.
"Officer's Certificate" means a certificate signed by the
chairman of the Board of Directors, the president, any vice
president or the treasurer of the Administrative Managing General
Partner and delivered to the Trustee. Each such certificate shall
include the statements provided for in Section 11.5.
"Opinion of Counsel" means an opinion in writing signed by
the General Counsel of the Administrative Managing General Partner
or by such other legal counsel who may be an employee of or counsel
to the Issuer. Each such opinion shall include the statements
provided for in Section 11.5.
"original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the
date of any Security (or portion thereof) for which such Security
was issued (directly or indirectly) on registration of transfer,
exchange or substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Section 5.1.
"Outstanding" (except as otherwise provided in Section 6.8),
when used with reference to Securities, shall, subject to the
provisions of Section 7.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this
Indenture, except
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities (other than Securities of any series as
to which the provisions of Article 10 hereof shall not be
applicable), or portions thereof, for the payment or
redemption of which moneys or U.S. Government Obligations
(as provided for in Section 10.1) in the necessary amount
shall have been deposited in trust with the Trustee or with
any paying agent (other than the Issuer) or shall have been
set aside, segregated and held in trust by the Issuer for
the Holders of such Securities (if the Issuer shall act as
its own paying agent), provided that if such Securities, or
portions thereto, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Trustee
shall have been made for giving such notice; and
(c) Securities which shall have been paid or in
substitution for which other Securities shall have been
authenticated and delivered pursuant to the terms of Section
2.9 (except with respect to any such Security as to which
proof satisfactory to the Trustee is presented that such
Security is held by a person in whose hands such Security is
a legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite
principal amount of Outstanding Securities of any or all series
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of an Original
Issue Discount Security that shall be deemed to be outstanding
for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 5.1.
"Periodic Offering" means an offering of Securities of a
series from time to time, the specific terms of which Securities,
including, without limitation, the rate or rates of interest, if
any, thereon, the stated maturity or maturities thereof and the
redemption provisions, if any, with respect thereto, are to be
determined by the Issuer or its agents upon the issuance of such
Securities.
"Person" means any individual, corporation, partnership,
joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
"principal" whenever used with reference to the Securities
or any Security or any portion thereof, shall be deemed to
include "and premium, if any".
"record date" shall have the meaning set forth in Section
2.7.
"Registered Global Security", means a Security evidencing
all or a part of a series of Registered Securities, issued to the
Depositary for such series in accordance with Section 2.4, and
bearing the legend prescribed in Section 2.4.
"Registered Security" means any Security registered on the
Security register of the Issuer.
"Required Currency" shall have the meaning set forth in
Section 11.12.
"Responsible Officer" when used with respect to the Trustee
means any officer in the Corporate Trustee Administration
Department (or any successor group) of the Trustee including any
vice president, assistant vice president, senior trust officer,
trust officer, any assistant secretary, or any other officer or
assistant officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time shall
be such officers, respectively, or to whom any corporate trust
matter is referred at the Corporate Trust Office because of his
knowledge of and familiarity with the particular subject.
"Security" or "Securities" (except as otherwise provided in
Section 6.8) has the meaning stated in the first recital of this
Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Trust Indenture Act of 1939" (except as otherwise provided
in Sections 8.1 and 8.2) means the Trust Indenture Act Of 1939 as
in force at the date as of which this Indenture was originally
executed.
"Trustee" means the Person identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article
Six, shall also include any successor trustee. "Trustee" shall
also mean or include each Person who is then a trustee hereunder
and if at any time there is more than one such Person, "Trustee"
as used with respect to the Securities of any series shall mean
the trustee with respect to the Securities of such series.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" shall have the meaning set
forth in Section 10.1(A).
"Yield to Maturity" means the yield to maturity on a series
of securities, calculated at the time of issuance of such series,
or, if applicable, at the most recent redetermination of interest
on such series, and calculated in accordance with accepted
financial practice.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series
and the Coupons, if any, to be attached thereto shall be
substantially in such form (not inconsistent with this Indenture)
as shall be established by or pursuant to one or more Board
Resolutions (as set forth in a Board Resolution or, to the extent
established pursuant to rather than set forth in a Board
Resolution, an Officer's Certificate detailing such
establishment) or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted
by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent
with the provisions of this Indenture, as may be required to
comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the
officers executing such Securities and Coupons, if any, as
evidenced by their execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or
may be produced in any other manner, all as determined by the
officers executing such Securities and Coupons, if any, as
evidenced by their execution of such Securities and Coupons, if
any.
SECTION 2.2 Form of Trustee's Certificate of
Authentication. The Trustee's certificate of authentication on
all Securities shall be in substantially the following form:
"This is one of the Securities of the series designated
herein referred to in the within-mentioned Senior Indenture.
CHEMICAL BANK, Trustee
By:
Authorized Officer
If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, the
Securities of such series may have endorsed thereon, in addition
to the Trustee's Certificate of Authentication, an alternate
certificate of authentication in substantially the following
form:
"This is one of the Securities of the series designated
herein referred to in the within-mentioned Senior Indenture.
CHEMICAL BANK, Trustee,
By: ,
As Authenticating Agent
By:
Authorized Signatory
SECTION 2.3 Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and each
such series shall rank equally and pari passu with all other
unsecured and unsubordinated debt of the Issuer. There shall be
established in or pursuant to one or more Board Resolutions (and
to the extent established pursuant to rather than set forth in a
Board Resolution, in an Officer's Certificate detailing such
establishment) or established in one or more indentures
supplemental hereto, prior to the initial issuance of Securities
of any series,
(1) the designation of the Securities of the series,
which shall distinguish the Securities of the series from
the Securities of all other series;
(2) any limit upon the aggregate principal amount of
the Securities of the series that may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
the series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or currency in
which the Securities of that series are denominated
(including, but not limited to, any Foreign Currency or
ECU);
(4) the date or dates on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the
series shall bear interest, if any, the date or dates from
which such interest shall accrue, on which such interest
shall be payable and (in the case of Registered Securities)
on which a record shall be taken for the determination of
Holders to whom interest is payable and/or the method by
which such rate or rates or date or dates shall be deter-
mined;
(6) the place or places where the principal of and any
interest on Securities of the series shall be payable (if
other than as provided in Section 3.2);
(7) the right, if any, of the Issuer or any Holder to
redeem or cause to be redeemed Securities, in whole or in
part, at its option and the period or periods within which,
the price or prices at which, and the manner in which (if
different from the provisions of Article 12 hereof), and any
terms and conditions upon which Securities of the series may
be so redeemed, pursuant to any sinking fund or otherwise
and/or the method by which such price or prices shall be
determined;
(8) the obligation, if any, of the Issuer to redeem,
purchase or repay Securities of the series pursuant to any
mandatory redemption, sinking fund or analogous provisions
or at the option of a Holder thereof and the price or prices
(and/or the method by which such price or prices shall be
determined) at which and the period or periods within which
and any terms and conditions upon which Securities of the
series shall be redeemed, purchased or repaid, in whole or
in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof in the case of Registered
Securities, or $1,000 and $5,000 in the case of
Unregistered Securities, the denominations in which
Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series
which shall be payable upon declaration of acceleration of
the maturity thereof;
(11) if other than the coin or currency in which the
Securities of that series are denominated, the coin or
currency in which payment of the principal of or interest on
the Securities of such series shall be payable;
(12) if the principal of or interest on the Securities
of such series are to be payable, at the election of the
Issuer or a Holder thereof, in a coin or currency other than
that in which the Securities are denominated, the period or
periods within which, and the terms and conditions upon
which, such election may be made;
(13) if the amount of payments of principal of and/or
interest on the Securities of the series may be determined
with reference to the value or price of any one or more
commodities, currencies or indices, the manner in which such
amounts will be determined;
(14) whether the Securities of the series will be
issuable as Registered Securities (and if so, whether such
Securities will be issuable as Registered Global Securities
and, if so, the Depositary therefor) or Unregistered
Securities (with or without Coupons), or any combination of
the foregoing, any restrictions applicable to the offer,
sale or delivery of Unregistered Securities or the payment
of interest thereon and, if other than as provided in
Section 2.8, the terms upon which Unregistered Securities of
any series may be exchanged for Registered Securities of
such series and vice versa;
(15) whether and under what circumstances the Issuer
will pay additional amounts on the Securities of the series
held by a person who is not a U.S. person in respect of any
tax, assessment or governmental charge withheld or deducted
and, if so, whether the Issuer will have the option to
redeem such Securities rather than pay such additional
amounts;
(16) if the Securities of such series are to be
issuable in definitive form (whether upon original issue or
upon exchange of a temporary Security of such series) only
upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(17) any trustees, authenticating or paying agents,
transfer agents or registrars or any other agents with
respect to the Securities of such series;
(18) any other events of default or covenants with
respect to the Securities of such series;
(19) whether the provisions of Section 10.1(B) hereof
will not be applicable to Securities of such series; and
(20) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any,
appertaining thereto, shall be substantially identical, except in
the case of Registered Securities as to denomination and except
as may otherwise be provided by or pursuant to the Board
Resolution or Officer's Certificate referred to above or as set
forth in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and may be
issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to such Board
Resolution, such Officer's Certificate or in any such indenture
supplemental hereto.
SECTION 2.4 Authentication and Delivery of Securities. The
Issuer may deliver Securities of any series having attached
thereto appropriate Coupons, if any, executed by the Issuer to
the Trustee for authentication together with the applicable
documents referred to below in this Section, and the Trustee
shall thereupon authenticate and deliver such Securities to or
upon the order of the Issuer (contained in the Issuer Order
referred to below in this Section) or pursuant to such procedures
acceptable to the Trustee and to such recipients as may be
specified from time to time by an Issuer Order. The maturity
date, original issue date, interest rate and any other terms of
the Securities of such series and Coupons, if any, appertaining
thereto shall be determined by or pursuant to such Issuer Order
and procedures. If provided for in such procedures, such Issuer
Order may authorize authentication and delivery pursuant to oral
instructions from the Issuer or its duly authorized agent, which
instructions shall be promptly confirmed in writing. In
authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive (in the case
of subparagraphs 2, 3 and 4 below only at or before the time of
the first request of the Issuer to the Trustee to authenticate
Securities of such series) and (subject to Section 6.1) shall be
fully protected in relying upon, unless and until such documents
have been superseded or revoked:
(1) an Issuer Order requesting such authentication and
setting forth delivery instructions if the Securities and
Coupons, if any, are not to be delivered to the Issuer,
provided that, with respect to Securities of a series
subject to a Periodic Offering, (a) such Issuer Order may be
delivered by the Issuer to the Trustee prior to the delivery
to the Trustee of such Securities for authentication and
delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to
time, in an aggregate principal amount not exceeding the
aggregate principal amount established for such series,
pursuant to an Issuer Order or pursuant to procedures
acceptable to the Trustee as may be specified from time to
time by an Issuer Order, (c) the maturity date or dates,
original issue date or interest rate or rates and any other
terms of Securities of such series shall be determined by an
Issuer Order or pursuant to such procedures and (d) if
provided for in such procedures, such Issuer Order may
authorize authentication and delivery pursuant to oral or
electronic instructions from the Issuer or its duly
authorized agent or agents, which oral instructions shall be
promptly confirmed in writing, and (e) after the original
issuance of the first Security of such series to be issued,
any separate request by the Issuer that the Trustee
authenticate Securities of such series for original issuance
will be deemed to be a certification by the Issuer that it
is in compliance with all conditions precedent provided for
in this Indenture relating to the authentication and
delivery of such Securities;
(2) any Board Resolution, Officer's Certificate and/or
executed supplemental indenture referred to in Sections 2.1
and 2.3 by or pursuant to which the forms and terms of the
Securities and Coupons, if any, were established;
(3) an Officer's Certificate setting forth the form or
forms and terms of the Securities and Coupons, if any,
stating that the form or forms and terms of the Securities
and Coupons, if any, have been established pursuant to
Sections 2.1 and 2.3 and comply with this Indenture, and
covering such other matters as the Trustee may reasonably
request; and
(4) At the option of the Issuer, either an Opinion of
Counsel, or a letter addressed to the Trustee permitting it
to rely on an Opinion of Counsel, substantially to the
effect that:
(a) the forms of the Securities and Coupons, if
any, have been duly authorized and established in
conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the
terms of the Securities have been duly authorized and
established in conformity with the provisions of this
Indenture, and, in the case of a Periodic Offering,
certain terms of the Securities have been established
pursuant to a Board Resolution, an Officer's
Certificate or a supplemental indenture in accordance
with this Indenture, and when such other terms as are
to be established pursuant to procedures set forth in
an Issuer Order shall have been established, all such
terms will have been duly authorized by the Issuer and
will have been established in conformity with the
provisions of this Indenture;
(c) when the Securities and Coupons, if any, have
been executed by the Issuer and authenticated by the
Trustee in accordance with the provisions of this
Indenture and delivered to and duly paid for by the
purchasers thereof, they will have been duly issued
under this Indenture and will be valid and legally
binding obligations of the Issuer, enforceable in
accordance with their respective terms, and will be
entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of,
and the performance by the Issuer of its obligations
under, the Securities and Coupons, if any, will not
contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Issuer
or any agreement or other instrument binding upon the
Issuer or any of its subsidiaries that is material to
the Issuer and its subsidiaries, considered as one
enterprise, or, to the best of such counsel's
knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction
over the Issuer or any subsidiary, and no consent,
approval or authorization of any governmental body or
agency is required for the performance by the Issuer of
its obligations under the Securities and Coupons, if
any, except such as are specified and have been
obtained and such as may be required by the securities
or blue sky laws of the various states in connection
with the offer and sale of the Securities and Coupons,
if any.
In rendering such opinions, such counsel may qualify any
opinions as to enforceability by stating that such enforceability
may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, liquidation, moratorium and other similar laws
affecting the rights and remedies of creditors and is subject to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law). Such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the State of New York and the
federal law of the United States, upon opinions of other counsel
(copies of which shall be delivered to the Trustee), in which
case the opinion shall state that such counsel believes he and
the Trustee are entitled so to rely. Such counsel may also state
that, insofar as such opinion involves factual matters, he has
relied, to the extent he deems proper, upon certificates of
officers of the Issuer and its subsidiaries and certificates of
public officials.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee,
being advised by counsel, determines that such action may not
lawfully be taken by the Issuer or if the Trustee in good faith
by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would
expose the Trustee to personal liability to existing Holders or
would affect the Trustee's own rights, duties or immunities under
the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that
the Securities of a series are to be issued in the form of one or
more Registered Global Securities, then the Issuer shall execute
and the Trustee shall, in accordance with this Section and the
Issuer Order with respect to such series, authenticate and
deliver one or more Registered Global Securities that (i) shall
represent and shall be denominated in an amount equal to the
aggregate principal amount of all of the Securities of such
series issued and not yet cancelled to be represented by such
Registered Global Securities, (ii) shall be registered in the
name of the Depositary for such Registered Global Security or
Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions and (iv) shall bear a legend sub-
stantially to the following effect: "Unless and until it is
exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a
whole by the Depositary to the 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."
Each Depositary designated pursuant to Section 2.3 must, at
the time of its designation and at all times while it serves as
Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934 and any other applicable statute or
regulation.
SECTION 2.5 Execution of Securities. The Securities and,
if applicable, each Coupon appertaining thereto shall be signed
on behalf of the Issuer by the chairman of the board of
directors, the president, any vice president or the treasurer of
the Administrative Managing General Partner, under its corporate
seal (except in the case of Coupons) which may, but need not, be
attested. Such signatures may be the manual or facsimile
signatures of the present or any future such chairman or
officers. The seal of the Administrative Managing General Partner
may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Securities.
Typographical and other minor errors or defects in any such
reproduction of the seal or any such signature shall not affect
the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Administrative Managing General
Partner who shall have signed any of the Securities or Coupons, if
any, shall cease to be such officer before the Security or Coupon so
signed (or the Security to which the Coupon so signed appertains)
shall be authenticated and delivered by the Trustee or disposed
of by the Issuer, such Security or Coupon nevertheless may be
authenticated and delivered or disposed of as though the person
who signed such Security or Coupon had not ceased to be such
officer of the Administrative Managing General Partner; and any
Security or Coupon may be signed on behalf of the Administrative
Managing General Partner by such persons as, at the actual date of
the execution of such Security or Coupon, shall be the proper
officers of the Administrative Managing General Partner, although
at the date of the execution and delivery of this Indenture any such
person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, executed by the
Trustee by the manual signature of one of its authorized
officers, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. No Coupon shall be
entitled to the benefits of this Indenture or shall be valid and
obligatory for any purpose until the certificate of
authentication on the Security to which such Coupon appertains
shall have been duly executed by the Trustee. The execution of
such certificate by the Trustee upon any Security executed by the
Issuer shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this
Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments
of Interest. The Securities of each series shall be issuable as
Registered Securities or Unregistered Securities in denominations
established as contemplated by Section 2.3 or, with respect to
the Registered Securities of any series, if not so established,
in denominations of $1,000 and any integral multiple thereof. If
denominations of Unregistered Securities of any series are not so
established, such Securities shall be issuable in denominations
of $1,000 and $5,000. The Securities of each series shall be
numbered, lettered or otherwise distinguished in such manner or
in accordance with such plan as the chairman or the officers of
the Administrative Managing General Partner executing the same may
determine with the approval of the Trustee, as evidenced by the
execution and authentication thereof.
Each Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as
provided in or pursuant to the resolution or resolutions of the
Board of Directors or indenture supplemental hereto referred to
in Section 2.3. The Securities of each series shall bear
interest, if any, from the date, and such interest shall be
payable on the dates, established as contemplated by Section 2.3.
The person in whose name any Registered Security of any
series is registered at the close of business on any record date
applicable to a particular series with respect to any interest
payment date for such series shall be entitled to receive the
interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest
payment date, except if and to the extent the Issuer shall
default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted
interest shall be paid to the persons in whose names Outstanding
Registered Securities for such series are registered at the close
of business on a subsequent record date (which shall be not less
than five Business Days prior to the date of payment of such
defaulted interest) established by notice given by mail by or on
behalf of the Issuer to the Holders of Registered Securities not
less than 15 days preceding such subsequent record date. The
term "record date" as used with respect to any interest payment
date (except a date for payment of defaulted interest) for the
Securities of any series shall mean the date specified as such in
the terms of the Registered Securities of such series established
as contemplated by Section 2.3, or, if no such date is so
established, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar
month or, if such interest payment date is the fifteenth day of a
calendar month, the first day of such calendar month, whether or
not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The
Issuer will keep at an office or agency to be maintained for the
purpose as provided in Section 3.2 for each series of Securities
a register in which, subject to such reasonable regulations as it
may prescribe, it will provide for the registration of Registered
Securities of each series and the registration of transfer of
Registered Securities of such series. Such register shall be in
written form in the English language or in any other form capable
of being converted into such form within a reasonable time. At
all reasonable times such register or registers shall be open for
inspection by the Trustee. There may not be more than one
register for each series of Securities.
Upon due presentation for registration of transfer of any
Registered Security of any series at any such office or agency to
be maintained for the purpose as provided in Section 3.2, the
Issuer shall execute and the Trustee shall authenticate and
deliver in the name of the transferee or transferees a new
Registered Security or Registered Securities of the same series,
maturity date, interest rate and original issue date in
authorized denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary global
Unregistered Securities) and Coupons (except for Coupons attached
to any temporary global Unregistered Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered Securities
of any series (other than a Registered Global Security, except as
set forth below) may be exchanged for a Registered Security or
Registered Securities of such series having authorized
denominations and an equal aggregate principal amount, upon
surrender of such Registered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in
accordance with Section 3.2 and upon payment, if the Issuer shall
so require, of the charges hereinafter provided. If the
Securities of any series are issued in both registered and
unregistered form, except as otherwise specified pursuant to
Section 2.3, at the option of the Holder thereof, Unregistered
Securities of any series may be exchanged for Registered
Securities of such series having authorized denominations and an
equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance
with Section 3.2, with, in the case of Unregistered Securities
that have Coupons attached, all unmatured Coupons and all matured
Coupons in default thereto appertaining, and upon payment, if the
Issuer shall so require, of the charges hereinafter provided. At
the option of the Holder thereof, if Unregistered Securities of
any series, maturity date, interest rate and original issue date
are issued in more than one authorized denomination, except as
otherwise specified pursuant to Section 2.3, such Unregistered
Securities may be exchanged for Unregistered Securities of such
series having authorized denominations and an equal aggregate
principal amount, upon surrender of such Unregistered Securities
to be exchanged at the agency of the Issuer that shall be
maintained for such purpose in accordance with Section 3.2 or as
specified pursuant to Section 2.3, with, in the case of
Unregistered Securities that have Coupons attached, all unmatured
Coupons and all matured Coupons in default thereto appertaining,
and upon payment, if the Issuer shall so require, of the charges
hereinafter provided. Unless otherwise specified pursuant to
Section 2.3, Registered Securities of any series may not be
exchanged for Unregistered Securities of such series. Whenever
any Securities are so surrendered for exchange, the Issuer shall
execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to
receive. All Securities and Coupons surrendered upon any
exchange or transfer provided for in this Indenture shall be
promptly cancelled and disposed of by the Trustee and the Trustee
will deliver a certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall (if so required
by the Issuer or the Trustee) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in
form satisfactory to the Issuer and the Trustee duly executed by
the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
connection with any exchange or registration of transfer of
Securities. No service charge shall be made for any such
transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15
days next preceding the first mailing or publication of notice of
redemption of Securities of such series to be redeemed, (b) any
Securities selected, called or being called for redemption, in
whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed, or
(c) any Security if the Holder thereof has exercised his right,
if any, to require the Issuer to repurchase such Security in
whole or in part, except the portion of such Security not
required to be repurchased.
Notwithstanding any other provision of this Section 2.8,
unless and until it is exchanged in whole or in part for
Securities in definitive registered form, a Registered Global
Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depositary
for such series to a nominee of such Depositary or by a nominee
of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for any Registered Securities
of a series represented by one or more Registered Global
Securities notifies the Issuer that it is unwilling or unable to
continue as Depositary for such Registered Securities or if at
any time the Depositary for such Registered Securities shall no
longer be eligible under Section 2.4, the Issuer shall appoint a
successor Depositary with respect to such Registered Securities.
If a successor Depositary for such Registered Securities is not
appointed by the Issuer within 90 days after the Issuer receives
such notice or becomes aware of such ineligibility, the Issuer's
election pursuant to Section 2.3 that such Registered Securities
be represented by one or more Registered Global Securities shall
no longer be effective and the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the
authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series
in definitive registered form without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities
representing such Registered Securities in exchange for such
Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion
determine that the Registered Securities of any series issued in
the form of one or more Registered Global Securities shall no
longer be represented by a Registered Global Security or
Securities. In such event the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the
authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series
in definitive registered form without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities
representing such Registered Securities, in exchange for such
Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with
respect to Securities represented by a Registered Global
Security, the Depositary for such Registered Global Security may
surrender such Registered Global Security in exchange in whole or
in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and
such Depositary. Thereupon, the Issuer shall execute, and the
Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new
Registered Security or Securities of the same series, of any
authorized denominations as requested by such Person, in an
aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Registered Global
Security; and
(ii) to such Depositary a new Registered Global
Security in a denomination equal to the difference, if any,
between the principal amount of the surrendered Registered
Global Security and the aggregate principal amount of
Registered Securities authenticated and delivered pursuant
to clause (i) above.
Upon the exchange of a Registered Global Security for
Securities in definitive registered form without Coupons, in
authorized denominations, such Registered Global Security shall
be cancelled by the Trustee or an agent of the Issuer or the
Trustee. Securities in definitive registered form without
Coupons issued in exchange for a Registered Global Security
pursuant to this Section 2.8 shall be registered in such names
and in such authorized denominations as the Depositary for such
Registered Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee or an agent of the Issuer or the Trustee. The Trustee or
such agent shall deliver such Securities to or as directed by the
Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid and legally binding obligations of the
Issuer, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such transfer or exchange.
Notwithstanding anything herein or in the terms of any
series of Securities to the contrary, none of the Issuer, the
Trustee or any agent of the Issuer or the Trustee (any of which,
other than the Issuer, shall rely on an Officer's Certificate and
an Opinion of Counsel) shall be required to exchange any
Unregistered Security for a Registered Security if such exchange
would result in adverse Federal income tax consequences to the
Issuer (such as, for example, the inability of the Issuer to
deduct from its income, as computed for Federal income tax
purposes, the interest payable on the Unregistered Securities)
under then applicable United States Federal income tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or any
Coupon appertaining to any Security shall become mutilated,
defaced or be destroyed, lost or stolen, the Issuer in its
discretion may execute, and upon the written request of any
officer of the Administrative Managing General Partner, the Trustee
shall authenticate and deliver a new Security of the same series,
maturity date, interest rate and original issue date, bearing a
number or other distinguishing symbol not contemporaneously
outstanding, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and in substitution for the
Security so destroyed, lost or stolen with Coupons corresponding
to the Coupons appertaining to the Securities so mutilated,
defaced, destroyed, lost or stolen, or in exchange or
substitution for the Security to which such mutilated, defaced,
destroyed, lost or stolen Coupon appertained, with Coupons
appertaining thereto corresponding to the Coupons so mutilated,
defaced, destroyed, lost or stolen. In every case the applicant
for a substitute Security or Coupon shall furnish to the Issuer
and to the Trustee and any agent of the Issuer or the Trustee
such security or indemnity as may be required by them to
indemnify and defend and to save each of them harmless and, in
every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security
or Coupon and of the ownership thereof and in the case of
mutilation or defacement shall surrender the Security and related
Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, 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 or its agent) connected therewith. In case any
Security or Coupon which has matured or is about to mature or has
been called for redemption in full shall become mutilated or
defaced or be destroyed, lost or stolen, the Issuer may instead
of issuing a substitute Security, pay or authorize the payment of
the same or the relevant Coupon (without surrender thereof except
in the case of a mutilated or defaced Security or Coupon), if the
applicant for such payment shall furnish to the Issuer and to the
Trustee and any agent of the Issuer or the Trustee such security
or indemnity as any of them may require to save each of them
harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Issuer and the Trustee and
any agent of the Issuer or the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Security
or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued
pursuant to the provisions of this Section by virtue of the fact
that any such Security or Coupon is destroyed, lost or stolen
shall constitute an additional contractual obligation of the
Issuer, whether or not the destroyed, lost or stolen Security or
Coupon shall be at any time enforceable by anyone and shall be
entitled to all the benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities or Coupons of
such series duly authenticated and delivered hereunder. All
Securities and Coupons shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or
payment of mutilated, defaced or destroyed, lost or stolen
Securities and Coupons and shall preclude any and all other
rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement
or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10 Cancellation of Securities; Disposition
Thereof. All Securities and Coupons surrendered for payment,
redemption, registration of transfer or exchange, or for credit
against any payment in respect of a sinking or analogous fund, if
surrendered to the Issuer or any agent of the Issuer or the
Trustee or any agent of the Trustee, shall be delivered to the
Trustee or its agent for cancellation or, if surrendered to the
Trustee, shall be cancelled by it; and no Securities or Coupons
shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Indenture. The Trustee or its
agent shall dispose of cancelled Securities and Coupons held by
it and deliver a certificate of disposition to the Issuer. If
the Issuer or its agent shall acquire any of the Securities or
Coupons, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities
or Coupons unless and until the same are delivered to the Trustee
or its agent for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation
of definitive Securities for any series, the Issuer may execute
and the Trustee shall authenticate and deliver temporary
Securities for such series (printed, lithographed, typewritten or
otherwise reproduced, in each case in form satisfactory to the
Trustee). Temporary Securities of any series shall be issuable
as Registered securities without coupons, or as Unregistered
Securities with or without coupons attached thereto, of any
authorized denomination, and substantially in the form of the
definitive Securities of such series but with such omissions,
insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the
concurrence of the Trustee as evidenced by the execution and
authentication thereof. Temporary Securities may contain such
references to any provisions of this Indenture as may be
appropriate. Every temporary Security shall be executed by the
Issuer and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like
effect, as the definitive Securities. Without unreasonable delay
the Issuer shall execute and shall furnish definitive Securities
of such series and thereupon temporary Registered Securities of
such series may be surrendered in exchange therefor without
charge at each office or agency to be maintained by the Issuer
for that purpose pursuant to Section 3.2 and, in the case of
Unregistered Securities, at any agency maintained by the Issuer
for such purpose as specified pursuant to Section 2.3, and the
Trustee shall authenticate and deliver in exchange for such
temporary Securities of such series an equal aggregate principal
amount of definitive Securities of the same series having
authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons.
Until so exchanged, the temporary Securities of any series shall
be entitled to the same benefits under this Indenture as defini-
tive Securities of such series, unless otherwise established
pursuant to Section 2.3. The provisions of this Section are
subject to any restrictions or limitations on the issue and
delivery of temporary Unregistered Securities of any series that
may be established pursuant to Section 2.3 (including any
provision that Unregistered Securities of such series initially
be issued in the form of a single global Unregistered Security to
be delivered to a depositary or agency located outside the United
States and the procedures pursuant to which definitive or global
Unregistered Securities of such series would be issued in
exchange for such temporary global Unregistered Security).
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer
covenants and agrees for the benefit of each series of Securities
that it will duly and punctually pay or cause to be paid the
principal of, and interest on, each of the Securities of such
series (together with any additional amounts payable pursuant to
the terms of such Securities) at the place or places, at the
respective times and in the manner provided in such Securities
and in the Coupons, if any, appertaining thereto and in this
Indenture. The interest on Securities with Coupons attached
(together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only upon presentation
and surrender of the several Coupons for such interest install-
ments as are evidenced thereby as they severally mature. If any
temporary Unregistered Security provides that interest thereon
may be paid while such Security is in temporary form, the
interest on any such temporary Unregistered Security (together
with any additional amounts payable pursuant to the terms of such
Security) shall be paid, as to the installments of interest
evidenced by Coupons attached thereto, if any, only upon
presentation and surrender thereof, and, as to the other
installments of interest, if any, only upon presentation of such
Securities for notation thereon of the payment of such interest,
in each case subject to any restrictions that may be established
pursuant to Section 2.3. The interest on Registered Securities
(together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only to or upon the
written order of the Holders thereof and, at the option of the
Issuer, may be paid by wire transfer (subject to the procedures
of the paying agent) or by mailing checks for such interest
payable to or upon the written order of such Holders at their
last addresses as they appear on the registry books of the
Issuer.
SECTION 3.2 Offices for Payments, etc. So long as any
Registered Securities are authorized for issuance pursuant to
this Indenture or are outstanding hereunder, the Issuer will
maintain in The City of New York, an office or agency where the
Registered Securities of each series may be presented for
payment, where the Securities of each series may be presented for
exchange as is provided in this Indenture and, if applicable,
pursuant to Section 2.3 and where the Registered Securities of
each series may be presented for registration of transfer as in
this Indenture provided.
The Issuer will maintain one or more offices or agencies in
a city or cities located outside the United States (including any
city in which such an agency is required to be maintained under
the rules of any stock exchange on which the Securities of such
series are listed) where the Unregistered Securities, if any, of
each series and Coupons, if any, appertaining thereto may be
presented for payment. No payment on any Unregistered Security
or Coupon will be made upon presentation of such Unregistered
Security or Coupon at an agency of the Issuer within the United
States nor will any payment be made by transfer to an account in,
or by mail to an address in, the United States unless pursuant to
applicable United States laws and regulations then in effect such
payment can be made without adverse tax consequences to the
Issuer. Notwithstanding the foregoing, payments in Dollars of
Unregistered Securities of any series and Coupons appertaining
thereto which are payable in Dollars may be made at an agency of
the Issuer maintained in The City of New York if such payment in
Dollars at each agency maintained by the Issuer outside the
United States for payment on such Unregistered Securities is
illegal or effectively precluded by exchange controls or other
similar restrictions.
The Issuer will maintain in The City of New York, an office
or agency where notices and demands to or upon the Issuer in
respect of the Securities of any series, the Coupons appertaining
thereto or this Indenture may be served.
The Issuer will give to the Trustee written notice of the
location of each such office or agency and of any change of
location thereof. In case the Issuer shall fail to maintain any
agency required by this Section to be located in The City of New
York, or shall fail to give such notice of the location or of any
change in the location of any of the above agencies,
presentations and demands may be made and notices may be served
at the Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of a series
and any Coupons appertaining thereto may be presented for
payment, where the Securities of that series may be presented for
exchange as provided in this Indenture and pursuant to Section
2.3 and where the Registered Securities of that series may be
presented for registration of transfer as in this Indenture
provided, and the Issuer may from time to time rescind any such
designation, as the Issuer may deem desirable or expedient;
provided, however, that no such designation or rescission shall
in any manner relieve the Issuer of its obligation to maintain
the agencies provided for in the first three paragraphs of this
Section. The Issuer will give to the Trustee prompt written
notice of any such designation or rescission thereof.
SECTION 3.3 Appointment to Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner
provided in Section 6.10, a Trustee, so that there shall at all
times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall
appoint a paying agent other than the Trustee with respect to the
Securities of any series, it will cause such paying agent to
execute and deliver to the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of
this Section,
(a) that it will hold all sums received by it as such
agent for the payment of the principal of or interest on the
Securities of such series (whether such sums have been paid
to it by the Issuer or by any other obligor on the
Securities of such series) in trust for the benefit of the
Holders of the Securities of such series, or Coupons
appertaining thereto, if any, or of the Trustee,
(b) that it will give the Trustee notice of any
failure by the Issuer (or by any other obligor on the
Securities of such series) to make any payment of the
principal of or interest on the Securities of such series
when the same shall be due and payable, and
(c) that at any time during the continuance of any
such failure, upon the written request of the Trustee, it
will forthwith pay to the Trustee all sums so held in trust
by such paying agent.
The Issuer will, on or prior to each due date of the
principal of or interest on the Securities of such series,
deposit with the paying agent a sum sufficient to pay such
principal or interest so becoming due, and (unless such paying
agent is the Trustee) the Issuer will promptly notify the Trustee
of any failure to take such action.
If the Issuer shall act as its own paying agent with respect
to the Securities of any series, it will, on or before each due
date of the principal of or interest on the Securities of such
series, set aside, segregate and hold in trust for the benefit of
the Holders of the Securities of such series or the Coupons
appertaining thereto a sum sufficient to pay such principal or
interest so becoming due. The Issuer will promptly notify the
Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding,
but subject to Section 10.1, the Issuer may at any time, for the
purpose of obtaining a satisfaction and discharge with respect to
one or more or all series of Securities hereunder, or for any
other reason, pay or cause to be paid to the Trustee all sums
held in trust for any such series by the Issuer or any paying
agent hereunder, as required by this Section, such sums to be
held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this section
is subject to the provisions of Sections 10.3 and 10.4.
SECTION 3.5 Written Statement to Trustee. The Issuer will
deliver to he Trustee on or before March 31 in each year
(beginning with March 31, 1996) an Officer's Certificate (which
need not comply with Section 11.5) stating that in the course of
the performance by the signers of their duties as officers of the
Administrative Managing General Partner they would normally have
knowledge of any default by the Issuer in the performance of any
covenants contained in this Indenture, stating whether or not they
have knowledge of any such default and, if so, specifying each such
default of which the signers have knowledge and the nature
thereof.
SECTION 3.6 Luxembourg Publications. In the event of the
publication of any notice pursuant to Section 5.11, 6.8, 6.10(a),
6.11, 8.2, 10.4, 12.2 or 12.5, the party making such publication
in the Borough of Manhattan, The City of New York and London
shall also, to the extent that notice is required to be given to
Holders of Securities of any series by applicable Luxembourg law
or stock exchange regulation, as evidenced by an Officer's
Certificate delivered to such party, make a similar publication
in Luxembourg.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to
Names and Addresses of Securityholders. The Issuer and any other
obligor on the Securities covenant and agree that they will
furnish or cause to be furnished to the Trustee a list in such
form as the Trustee may reasonably require of the names and
addresses of the Holders of the Registered Securities of each
series:
(a) semiannually and not more than 15 days after each
March 1 and September 1, and
(b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Issuer of any
such request as of a date not more than 15 days prior to the
time such information is furnished,
provided that if and so long as the Trustee shall be the Security
registrar for such series and all of the Securities of any series
are Registered Securities, such list shall not be required to be
furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders
Lists. (a) The Trustee shall preserve, in as current a form as
is reasonably practicable, all information as to the names and
addresses of the Holders of each series of Registered Securities
(i) contained in the most recent list furnished to it as provided
in Section 4.1, (ii) received by it in the capacity of Security
registrar for such series, if so acting, and (iii) filed with it
within two preceding years pursuant to 4.4(c)(ii). The Trustee
may destroy any list furnished to it as provided in Section 4.1
upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities
(hereinafter referred to as "applicants") apply in writing to the
Trustee and furnish to the Trustee reasonable proof that each
such applicant has owned a Security for a period of at least six
months preceding the date of such application, and such
application states that the applicants desire to communicate with
other Holders of Securities of a particular series (in which case
the applicants must all hold Securities of such series) or with
Holders of all Securities with respect to their rights under this
Indenture or under such Securities and such application is
accompanied by a copy of the form of proxy or other communication
which such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such
application, at its election, either
(i) afford to such applicants access to the
information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this
Section, or
(ii) inform such applicants as to the approximate
number of Holders of Securities of such series or of all
Securities, as the case may be, whose names and addresses
appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a)
of this Section, and as to the approximate cost of mailing
to such Securityholders the form of proxy or other com-
munication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants
access to such information, the Trustee shall, upon the written
request of such applicants, mail to each Securityholder of such
series or all Holders of Securities, as the case may be, whose
name and address appears in the information preserved at the time
by the Trustee in accordance with the provisions of subsection
(a) of this Section a copy of the form of proxy or other com-
munication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file
with the Commission together with a copy of the material to be
mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interests
of the Holders of Securities of such series or of all Securities,
as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion.
If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained
have been met, and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Securityholders
with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved
of any obligation or duty to such applicants respecting their
application.
(c) Each and every Holder of Securities and Coupons,
by receiving and holding the same, agrees with the Issuer and the
Trustee that neither the Issuer nor the Trustee nor any agent of
the Issuer or the Trustee shall be held accountable by reason of
the disclosure of any such information as to the names and
addresses of the Holders of Securities in accordance with the
provisions of subsection (b) of this Section, 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 made under such subsection (b).
SECTION 4.3 Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the
Issuer is required to file the same with the Commission,
copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time
by rules and regulations prescribe) which the Issuer may be
required to file with the Commission pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934; or
if the Issuer is not required to file information,
documents, or reports pursuant to either of such Sections,
then to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time
to time by the Commission, such of the supplementary and
periodic information, documents, and reports which may be
required pursuant to Section 13 of the Securities Exchange
Act of 1934 in respect of a debt security listed and
registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time
to time by the Commission, such additional information,
documents, and reports with respect to compliance by the
Issuer with the conditions and covenants provided for in
this Indenture as may be required from time to time by such
rules and regulations;
(c) to transmit by mail to the Holders of Securities
within 30 days after the filing thereof with the Trustee, in
the manner and to the extent provided in Section 4.4(c),
such summaries of any information, documents and reports
required to be filed by the Issuer pursuant to subsections
(a) and (b) of this Section as may be required to be trans-
mitted to such Holders by rules and regulations prescribed
from time to time by the Commission; and
(d) to furnish to the Trustee, not less often than
annually, a brief certificate from the principal executive
officer, principal financial officer or principal accounting
officer of the Administrative Managing General Partner as to
his or her knowledge of the Issuer's compliance with all
conditions and covenants under this Indenture. For purposes of
this subsection (d), such compliance shall be determined
without regard to any period of grace or requirement of notice
provided under this Indenture.
SECTION 4.4 Reports by the Trustee. (a) Within 60 days
after May 15 of each year commencing with the year 1996, the
Trustee shall transmit by mail to the Holders of Securities, as
provided in Subsection (c) of this Section, a brief report dated
as of such May 15 with respect to:
(i) any change to its eligibility under Section
6.9 and its qualification under Section 6.8;
(ii) the creation of or any material change to a
relationship specified in subsection 6.8(c)(i)-(x);
(iii) the character and amount of any advances
(and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as
such) which remain unpaid on the date of such report and for
the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities of any series, on
any property or funds held or collected by it as Trustee,
except that the Trustee shall not be required (but may
elect) to report such advances if such advances so remaining
unpaid aggregate not more than 1/2 of 1% of the principal
amount of the Securities of any series outstanding on the
date of such report;
(iv) any change to the amount, interest rate,
and maturity date of all other indebtedness owing by the
Issuer (or by any other obligor on the Securities) to the
Trustee in its individual capacity on the date of such
report, with a brief description of any property held as
collateral security therefor, except any indebtedness based
upon a creditor relationship arising in any manner described
in Section 6.13(b)(2), (3), (4) or (6);
(v) any change to the property and funds, if any,
physically in the possession of the Trustee (as such) on the
date of such report;
(vi) any additional issue of Securities which the
Trustee has not previously reported; and
(vii)any action taken by the Trustee in the
performance of its duties under this Indenture which it has
not previously reported and which in its opinion materially
affects the Securities, except action in respect of a
default, notice of which has been or is to be withheld by it
in accordance with the provisions of Section 5.11.
(b) The Trustee shall transmit to the Securityholders
of each series, as provided in subsection (c) of this Section, a
brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the
Trustee, as such, since the date of the last report transmitted
pursuant to the provisions of subsection (a) of this Section (or
if no such report has yet been so transmitted, since the date of
this Indenture) for the reimbursement of which it claims or may
claim a lien or charge prior to that of the Securities of such
series on property or funds held or collected by it as Trustee
and which it has not previously reported pursuant to this
subsection (b), except that the Trustee shall not be required
(but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the
principal amount of Securities of such series outstanding at such
time, such report to be transmitted within 90 days after such
time.
(c) Reports pursuant to this Section shall be
transmitted by mail:
(i) to all Holders of Registered Securities, as
the names and addresses of such Holders appear upon the
registry books of the Issuer;
(ii) to such other Holders of Securities as have,
within two years preceding such transmission, filed their
names and addresses with the Trustee for that purpose; and
(iii) except in the case of reports pursuant to
subsection (b), to each Holder of a Security whose name and
address are preserved at the time by the Trustee as provided
in Section 4.2(a).
(d) A copy of each such report shall, at the time of
such transmission to Securityholders, be furnished to the Issuer
and be filed by the Trustee with each stock exchange upon which
the Securities of any applicable series are listed and also with
the Commission. The Issuer agrees to notify the Trustee with
respect to any series when and as the Securities of such series
become admitted to trading on any national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default" with respect to
Securities of any series wherever used herein, means each one of
the following events which shall have occurred and be continuing
(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):
(a) default in the payment of any installment of
interest upon any of the Securities of such series as and
when the same shall become due and payable, and continuance
of such default for a period of 30 days; or
(b) default in the payment of all or any part of the
principal of any of the Securities of such series as and
when the same shall become due and payable either at
maturity, upon any redemption, by declaration or otherwise;
provided that, if such default is a result of the optional
redemption by the Holders of such Securities, the amount
thereof shall be in excess of $10,000,000 or the equivalent
thereof in any currency or composite currency; or
(c) failure on the part of the Issuer duly to observe
or perform any other of the covenants or agreements on the
part of the Issuer in the Securities of such series (other
than a covenant or warranty in respect of the Securities of
such series a default in the performance or breach of which
is elsewhere in this Section specifically dealt with) or in
this Indenture contained for a period of 60 days after the
date on which written notice specifying such failure,
stating that such notice is a "Notice of Default" hereunder
and demanding that the Issuer remedy the same, shall have
been given by registered or certified mail, return receipt
requested, to the Issuer by the Trustee, or to the Issuer
and the Trustee by the holders of at least 25% in aggregate
principal amount of the Outstanding Securities of such
series; or
(d) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Issuer
in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect,
or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Issuer or
for any substantial part of its property or ordering the
winding up or liquidation of its affairs, and such decree or
order shall remain unstayed and in effect for a period of 60
consecutive days; or
(e) the Issuer shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such law,
or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Issuer or for any
substantial part of its property, or make any general
assignment for the benefit of creditors; or
(f) failure by the Issuer to make any payment at
maturity (or upon any redemption), including any applicable
grace period, in respect of indebtedness, which term as used
herein means obligations (other than the Securities of such
series or nonrecourse obligations) of, or guaranteed or
assumed by, the Issuer for borrowed money or evidenced by
bonds, debentures, notes or other similar instruments
("Indebtedness") in an amount in excess of $50,000,000 or
the equivalent thereof in any other currency or composite
currency and such failure shall have continued for a period
of thirty days after written notice thereof shall have been
given by registered or certified mail, return receipt
requested, to the Issuer by the Trustee, or to the Issuer
and the Trustee by the holders of not less than 25% in
aggregate principal amount of the Outstanding Securities of
such series; or
(g) a default with respect to any Indebtedness, which
default results in the acceleration of Indebtedness in an
amount in excess of $50,000,000 or the equivalent thereof
in any other currency or composite currency without such
Indebtedness having been discharged or such acceleration
having been cured, waived, rescinded or annulled for a
period of thirty days after written notice thereof shall
have been given by registered or certified mail, return
receipt requested, to the Issuer by the Trustee, or to the
Issuer and the Trustee by the holders of not less than 25%
in aggregate principal amount of the Outstanding Securities
of such series; or
(h) any other Event of Default provided in the
supplemental indenture under which such series of Securities
is issued or in the form of Security for such series;
provided that if any such failure, default or acceleration
referred to in clauses (f), (g) and (h) or the proviso to clause
(b) above shall cease or be cured, waived, rescinded or annulled,
then the Event of Default hereunder by reason thereof, and any
acceleration under this Section 5.1 resulting solely therefrom,
shall be deemed likewise to have been thereupon cured.
If an Event of Default occurs and is continuing with respect
to the Securities of any series, then, and in each and every such
case, except for any series of Securities the principal of which
shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of
the Securities of such series then Outstanding hereunder by
notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the
Securities of such series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the
terms of such series) of all Securities of such series, and the
interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration, the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the
Securities are Original Issue Discount Securities, such portion
of the principal as may be specified in the terms thereof) of the
Securities of any series shall have been so declared due and
payable, and before any judgment or decree for the payment of the
moneys due shall have been obtained or entered as hereinafter
provided, the Issuer shall pay or shall deposit with the Trustee
a sum sufficient to pay all matured installments of interest upon
all the Securities of such series and the principal of any and
all Securities of such series which shall have become due
otherwise than by acceleration (with interest upon such principal
and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest, at the
same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the
Securities of such series to the date of such payment or deposit)
and such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, its
agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee except as a result of negligence or bad
faith, and if any and all Events of Default under the Indenture,
other than the non-payment of the principal of Securities which
shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein--then and in
every such case the Holders of a majority in aggregate principal
amount of all the Securities of such series then Outstanding, by
written notice to the Issuer and to the Trustee, may waive all
defaults with respect to such series and rescind and annul such
declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have
been accelerated and declared due and payable pursuant to the
provisions hereof, then, from and after such declaration, unless
such declaration has been rescinded and annulled, the principal
amount of such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such portion of the
principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal
thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full
of such original Issue Discount Securities.
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee
May Prove Debt. The Issuer covenants that (a) in case default
shall be made in the payment of any installment of interest on
any of the Securities of any series when such interest shall have
become due and payable, and such default shall have continued for
a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the
Securities of any series when the same shall have become due and
payable, whether upon maturity of the Securities of such series
or upon any redemption or by declaration or otherwise, subject to
the provisions of clause (b) of Section 5.1, then upon demand of
the Trustee, the Issuer will pay to the Trustee for the benefit
of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of
such series, and such Coupons, for principal or interest, as the
case may be (with interest to the date of such payment upon the
overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue
installments of interest at the same rate as the rate of interest
or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series); and in
addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including reasonable
compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and any expenses and
liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee except as a result of its negligence or
bad faith.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest on the Securities of any series to
the Holders, whether or not the Securities of such Series be
overdue.
In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of
an express trust, shall be entitled and empowered to institute
any action or proceedings at law or in equity for the collection
of the sums so due and unpaid, and may prosecute any such action
or proceedings to judgment or final decree, and may enforce any
such judgment or final decree against the Issuer or other obligor
upon the Securities and collect in the manner provided by law out
of the property of the Issuer or other obligor upon the
Securities, wherever situated the moneys adjudged or decreed to
be payable.
In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Securities under Title 11 of
the United States Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property
or such other obligor, or in case of any other comparable
judicial proceedings relative to the Issuer or other obligor upon
the Securities, or to the creditors or property of the Issuer or
such other obligor, 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 pursuant to the
provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole
amount of principal and interest (or, if the Securities of
any series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the
terms of such series) owing and unpaid in respect of the
Securities of any series, 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
reasonable compensation to the Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel,
and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Trustee and each
predecessor Trustee, except as a result of negligence or bad
faith) and of the Securityholders allowed in any judicial
proceedings relative to the Issuer or other obligor upon the
Securities, or to the creditors or property of the Issuer or
such other obligor,
(b) unless prohibited by applicable law and
regulations, to vote on behalf of the holders of the
Securities of any series in any election of a trustee or a
standby trustee in arrangement, reorganization, liquidation
or other bankruptcy or insolvency proceedings or person
performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other
property payable or deliverable on any such claims, and to
distribute all amounts received with respect to the claims
of the Securityholders and of the Trustee on their behalf;
and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the
Securityholders to make payments to the Trustee, and, in the
event that the Trustee shall consent to the making of
payments directly to the Securityholders, to pay to the
Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Trustee, each predecessor
Trustee and their respective agents, attorneys and counsel,
and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt
on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
of any series or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to
vote for the election of a trustee in bankruptcy or similar
person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities of any series or
Coupons appertaining to such Securities, may be enforced by the
Trustee without the possession of any of the Securities of such
series or Coupons appertaining to such Securities or the
production thereof on any trial or other proceedings relative
thereto, and any such action or proceedings instituted by the
Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of
the expenses, liabilities, disbursements and compensation of the
Trustee, each predecessor Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Holders of the
Securities or Coupons appertaining to such Securities in respect
of which such action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this
Indenture to which the Trustee shall be a party) the Trustee
shall be held to represent all the Holders of the Securities or
Coupons appertaining to such Securities in respect to which such
action was taken, and it shall not be necessary to make any
Holders of such Securities or Coupons appertaining to such
Securities parties to any such proceedings.
SECTION 5.3 Application of Proceeds. Any moneys collected
by the Trustee pursuant to this Article in respect of any series
shall be applied in the following order at the date or dates
fixed by the Trustee and, in case of the distribution of such
moneys on account of principal or interest, upon presentation of
the several Securities and Coupons appertaining to such
Securities in respect of which monies have been collected and
stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in
exchange for the presented Securities of like series if only
partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable
to such series in respect of which monies have been
collected, including reasonable compensation to the Trustee
and each predecessor Trustee and their respective agents and
attorneys and of all expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith;
SECOND: In case the principal of the Securities of
such series in respect of which moneys have been collected
shall not have become and be then due and payable, to the
payment of interest on the Securities of such series in
default in the order of the maturity of the installments of
such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in such Securities, such
payments to be made ratably to the persons entitled thereto,
without discrimination or preference;
THIRD: In case the principal of the Securities of such
series in respect of which moneys have been collected shall
have become and shall be then due and payable, to the
payment of the whole amount then owing and unpaid upon all
the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent
that such interest has been collected by the Trustee) upon
overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the
Securities of such series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and
unpaid upon the Securities of such series, then to the
payment of such principal and interest or Yield to Maturity,
without preference or priority of principal over interest or
Yield to Maturity, or of interest or Yield to Maturity over
principal, or of any installment of interest over any other
installment of interest, or of any Security of such series
over any other Security of such series, ratably to the
aggregate of such principal and accrued and unpaid interest
or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to
the Issuer or any other person lawfully entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an Event of
Default has occurred, has not been waived and is continuing, the
Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this
Indenture or to enforce any other legal or equitable right vested
in the Trustee by this Indenture or by law.
SECTION 5.5 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee shall have proceeded to enforce
any right under this Indenture and such proceedings shall have
been discontinued or abandoned for any reason, or shall have been
finally determined adversely to the Trustee, then and in every
such case the Issuer and the Trustee shall be restored
respectively to their former positions and rights hereunder, and
all rights, remedies and powers of the Issuer, the Trustee and
the Securityholders shall continue as though no such proceedings
had been taken.
SECTION 5.6 Limitations on Suits by Securityholders. No
Holder of any Security of any series or of any Coupon
appertaining thereto shall have any right by virtue or by
availing of any provision of this Indenture to institute any
action or proceeding at law or in equity or in bankruptcy or
otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or
other similar official or for any other remedy hereunder, unless
such Holder previously shall have given to the Trustee written
notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than 25% in
aggregate principal amount of the Securities of such affected
series then outstanding shall have made written request upon the
Trustee to institute such action or proceedings in its own name
as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby and
the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such
action or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee pursuant to
Section 5.9; it being understood and intended, and being
expressly covenanted by the Holder of every Security or Coupon
with every other Holder and the Trustee, that no one or more
Holders of Securities of any series or Coupons appertaining to
such Securities shall have any right in any manner whatever by
virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any other such Holder
of Securities or Coupons appertaining to such Securities, or to
obtain or seek to obtain priority over or preference to any other
such Holder or to enforce any right under this Indenture, except
in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable
series and Coupons appertaining to such Securities. For the
protection and enforcement of the provisions of this Section,
each and every Securityholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
SECTION 5.7 Unconditional Right of Securityholders to
Institute Certain Suits. Notwithstanding any other provision in
this Indenture and any provision of any Security, the right of
any Holder of any Security or Coupon to receive payment of the
principal of and interest on such Security or Coupon on or after
the respective due dates expressed or provided for in such
Security or Coupon, or to institute suit for the enforcement of
any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default. Except as provided in Sections
2.9 and 5.6, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Securities or Coupons is
intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of
Securities or Coupons to exercise any right or power accruing
upon any Event of Default occurring and continuing as aforesaid
shall impair any such right or power or shall be construed to be
a waiver of any such Event of Default or an acquiescence therein;
and, subject to Section 5.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Holders of
Securities or Coupons may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or by the
Holders of Securities or Coupons.
SECTION 5.9 Control by Holders of Securities. The Holders
of a majority in aggregate principal amount of the Securities of
any series affected at the time Outstanding shall have the right
to direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee with respect to the
Securities of such series pursuant to this Indenture; provided
that such direction shall not be otherwise than in accordance
with law and the provisions of this Indenture and provided
further that (subject to the provisions of Section 6.1) the
Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith by its board of
directors, the executive committee, or a trust committee of
directors or Responsible Officers of the Trustee shall determine
that the action or proceedings so directed would involve the
Trustee in personal liability or if the Trustee in good faith
shall so determine that the actions or forebearances specified in
or pursuant to such direction would be unduly prejudicial to the
interests of Holders of the Securities of all series so affected
not joining in the giving of said direction, it being understood
that (subject to Section 6.1) the Trustee shall have no duty to
ascertain whether or not such actions or forebearances are unduly
prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the
Trustee and which is not inconsistent with such direction or
directions by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the
acceleration of the maturity of any Securities as provided in
Section 5.1, the Holders of a majority in aggregate principal
amount of the Securities of any series at the time Outstanding
with respect to which an Event of Default shall have occurred and
be continuing may on behalf of the Holders of all such Securities
waive any past default or Event of Default with respect to such
series described in Section 5.1 and its consequences, except a
default in respect of a covenant or provision hereof which cannot
be modified or amended without the consent of the Holder of each
Security affected (including, without limitation, the provisions
with respect to payment of principal of and interest on such
Security). In the case of any such waiver, the Issuer, the
Trustee and the Holders of all such Securities shall be restored
to their former positions and rights hereunder, respectively; but
no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and
be deemed to have been cured and not to have occurred, and any
Event of Default arising therefrom shall be deemed to have been
cured, and not to have occurred for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent
thereon.
SECTION 5.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances. The Trustee shall, within
ninety days after the occurrence of a default with respect to the
Securities of any series, give notice of all defaults with
respect to that series known to the Trustee (i) if any
Unregistered Securities of that series are then Outstanding, to
the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New
York and at least once in an Authorized Newspaper in London (and,
if required by Section 3.6, at least once in an Authorized
Newspaper in Luxembourg) and (ii) to all Holders of Securities of
such series in the manner and to the extent provided in Section
4.4(c), unless in each case such defaults shall have been cured
before the mailing or publication of such notice (the term
"defaults" for the purpose of this Section being hereby defined
to mean any event or condition which is, or with notice or lapse
of time or both would become, an Event of Default); provided
that, except in the case of default in the payment of the
principal of or interest on any of the Securities of such series,
or in the payment of any sinking or purchase fund installment on
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 or trustees and/or
Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interests of the
Securityholders of such series.
SECTION 5.12 Right of Court to Require Filing of
Undertaking to Pay Costs. All parties to this Indenture agree,
and each Holder of any Security or Coupon by his 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, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an 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 Securityholder or group of Securityholders
of any series holding in the aggregate more than 10% in aggregate
principal amount of the Securities of such series then Outs-
tanding, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of or interest on any
Security on or after the due date expressed in such Security or
any date fixed for redemption.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default. With respect to the Holders of
any series of Securities issued hereunder, the Trustee, prior to
the occurrence of an Event of Default with respect to the
Securities of a particular series and after the curing or waiving
of all Events of Default which may have occurred with respect to
such series, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case
an Event of Default with respect to the Securities of a series
has occurred (which has not been cured or waived) the Trustee
shall exercise with respect to such series of Securities such of
the rights and powers vested in it by this Indenture, and use the
same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of
his own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own
negligent failure to act or its own wilful misconduct, except
that
(a) prior to the occurrence of an Event of Default
with respect to the Securities of any series and after the
curing or waiving of all such Events of Default with respect
to such series which may have occurred:
(i) the duties and obligations of the Trustee
with respect to the Securities of any series shall be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the
opinions expressed therein, upon any statements, cer-
tificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but
in the case of any such statements, certificates or
opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders pursuant to
Section 5.9 relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if
there shall be reasonable ground for believing that the repayment
of such funds or adequate indemnity against such liability is not
reasonably assured to it.
SECTION 6.2 Certain Rights of the Trustee. Subject to
Section 6.1:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
Officer's Certificate or any other certificate, statement,
instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, coupon, security or other
paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the
Issuer mentioned herein shall be sufficiently evidenced by
an Officer's Certificate or Issuer Order (unless other
evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified
by the secretary or an assistant secretary of the
Administrative Managing General Partner;
(c) the Trustee may consult with counsel and any
written advice or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any
action taken, suffered or omitted to be taken by it
hereunder in good faith and in reliance thereon in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this
Indenture at the request, order or direction of any of the
Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to
the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action
taken or omitted by it in good faith and believed by it to
be authorized or within the discretion, rights or powers
conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of
Default, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval,
appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate
principal amount of the Securities of all series affected
then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable
expenses of every such investigation shall be paid by the
Issuer or, if paid by the Trustee or any predecessor
Trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys not regularly
in its employ and the Trustee shall not be responsible for
any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals,
Disposition of Securities or Application of Proceeds Thereof.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the
statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee
makes no representation as to the validity or sufficiency of this
Indenture or of the Securities or Coupons. The Trustee shall not
be accountable for the use or application by the Issuer of any of
the Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities or
Coupons; Collections, etc. The Trustee or any agent of the
Issuer or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities or Coupons with the
same rights it would have if it were not the Trustee or such
agent and, subject to Sections 6.8 and 6.13, may otherwise deal
with the Issuer and receive, collect, hold and retain collections
from the Issuer with the same rights it would have if it were not
the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the
provisions of Section 10.4 hereof, all moneys received by the
Trustee shall, until used or applied as herein provided, be held
in trust for the purposes for which they were received, but need
not be segregated from other funds except to the extent required
by mandatory provisions of law. Neither the Trustee nor any
agent of the Issuer or the Trustee shall be under any liability
for interest on any moneys received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and
Its Prior Claim. The Issuer covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to,
reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of
the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel
and of all agents and other persons not regularly in its employ)
except any such expense, disbursement or advance as may arise
from its negligence or bad faith. The Issuer also covenants to
indemnify the Trustee and each predecessor 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 this
Indenture or the trusts hereunder and its duties hereunder,
including the costs and expenses of defending itself against or
investigating any claim or liability in the premises. The
obligations of the Issuer under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. Such additional indebtedness shall
be a senior claim to that of the Securities upon all property and
funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of particular Securities
or Coupons, and the Securities are hereby subordinated to such
senior claim. Without prejudice to any other rights available to
the Trustee under applicable law, when the Trustee incurs
expenses or renders services in connection with an Event of
Default specified in Section 5.1(d) or (e), the expenses
(including the reasonable fees and expenses of its counsel) and
the compensation for the service in connection therewith are
intended to constitute expenses of administration under any
bankruptcy law.
SECTION 6.7 Right of Trustee to Rely on Officer's
Certificate, etc. Subject to Sections 6.1 and 6.2, whenever in
the administration of the trusts of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof
be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officer's
Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.
SECTION 6.8 Qualification of Trustee; Conflicting
Interests. (a) If the Trustee has or shall acquire any
conflicting interest, as defined in this Section, it shall,
within 90 days after ascertaining that it has such conflicting
interest, and if the default (as defined in Section 5.1) to which
such conflicting interest relates has not been cured or duly
waived or otherwise eliminated before the end of such 90-day
period, either eliminate such conflicting interest or resign in
the manner and with the effect specified in this Indenture.
(b) In the event that the Trustee shall fail to comply
with the provisions of subsection (a) of this Section, the
Trustee shall, within 10 days after the expiration of such 90 day
period, transmit by mail notice of such failure to the
Securityholders in the manner and to the extent required by
Section 4.4(c) and, if any Unregistered Securities are then
Outstanding, shall publish notice of such failure at least once
in an Authorized Newspaper in the Borough of Manhattan, The City
of New York and at least once in an Authorized Newspaper in
London (and, if required by Section 3.6, at least once in an
Authorized Newspaper in Luxembourg).
(c) For the purposes of this Section, the Trustee
shall be deemed to have a conflicting interest with respect to
Securities of any series if any Securities of any series issued
under this Indenture are in default (defined as an Event of
Default exclusive of any period of grace or requirement of
notice) and
(i) the Trustee is trustee under this Indenture
with respect to the Outstanding Securities of any other
series or is a trustee under another indenture under which
any other securities, or certificates of interest or
participation in any other securities, of the Issuer are
outstanding, unless such other indenture is a collateral
trust indenture under which the only collateral consists of
Securities issued under this Indenture; provided that there
shall be excluded from the operation of this paragraph, this
Indenture with respect to the Securities of any other series
and there shall also be so excluded any other indenture or
indentures under which other securities, or certificates of
interest or participation in other securities, of the Issuer
are outstanding if (i) this Indenture is and, if applicable,
this Indenture and any series issued pursuant to this
Indenture and such other indenture or indentures are wholly
unsecured and rank equally, and such other indenture or
indentures are hereafter qualified under the Trust Indenture
Act of 1939, unless the Commission shall have found and
declared by order pursuant to Section 305(b) or Section
307(c) of the Trust Indenture Act of 1939 that differences
exist between the provisions of this Indenture with respect
to Securities of such series and one or more other series,
or the provisions of this Indenture and the provisions of
such other indenture or indentures which are so likely to
involve a material conflict of interest as to make it
necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as such
under this Indenture with respect to Securities of such
series and such other series, or under this Indenture or
such other indenture or indentures, or (ii) the Issuer shall
have sustained the burden of proving, on application to the
Commission and after opportunity for hearing thereon, that
trusteeship under this Indenture with respect to Securities
of such series and such other series, or under this
Indenture and such other indenture or indentures is not so
likely to involve a material conflict of interest as to make
it necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as such
under this Indenture with respect to Securities of such
series and such other series, or under this Indenture and
such other indentures;
(ii) the Trustee or any of its directors or
executive officers is an underwriter for the Issuer upon the
Securities of any series issued under this Indenture;
(iii) the Trustee directly or indirectly con-
trols or is directly or indirectly controlled by or is under
direct or indirect common control with an underwriter for
the Issuer;
(iv) the Trustee or any of its directors or
executive officers is a director, officer, partner,
employee, appointee, or representative of the Issuer, or of
an underwriter (other than the Trustee itself) for the
Issuer who is currently engaged in the business of
underwriting, except that (x) one individual may be a
director or an executive officer, or both, of the Trustee
and a director or an executive officer, or both, of the
Issuer, but may not be at the same time an executive officer
of both the Trustee and the Issuer; (y) if and so long as
the number of directors of the Trustee in office is more
than nine, one additional individual may be a director or an
executive officer, or both, of the Trustee and a director of
the Issuer; and (z) the Trustee may be designated by the
Issuer or by any underwriter for the Issuer to act in the
capacity of transfer agent, registrar, custodian, paying
agent, fiscal agent, escrow agent, or depositary, or in any
other similar capacity, or, subject to the provisions of
subsection (c)(i) of this Section, to act as trustee,
whether under an indenture or otherwise;
(v) 10% or more of the voting securities of the
Trustee is beneficially owned either by the Issuer or by any
director, partner or executive officer thereof, or 20% or
more of such voting securities is beneficially owned,
collectively, by any two or more of such persons; or 10% or
more of the voting securities of the Trustee is beneficially
owned either by an underwriter for the Issuer or by any
director, partner, or executive officer thereof, or is
beneficially owned, collectively, by any two or more such
persons;
(vi) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is in
default, (x) 5% or more of the voting securities or 10% or
more of any other class of security of the Issuer, not
including the Securities issued under this Indenture and
securities issued under any other indenture under which the
Trustee is also trustee, or (y) 10% or more of any class of
security of an underwriter for the Issuer;
(vii) the Trustee is the beneficial owner of, or
holds as collateral security for an obligation which is in
default, 5% or more of the voting securities of any person
who, to the knowledge of the Trustee, owns 10% or more of
the voting securities of, or controls directly or indirectly
or is under direct or indirect common control with, the
Issuer;
(viii) the Trustee is the beneficial owner of,
or holds as collateral security for an obligation which is
in default, 10% or more of any class of security of any
person who, to the knowledge of the Trustee, owns 50% or
more of the voting securities of the Issuer;
(ix) the Trustee owns on the date of default upon
Securities of any series issued under this Indenture (as
defined in this Section) or any anniversary of such default
while such default upon Securities of any series issued
under this Indenture remains outstanding in the capacity of
executor, administrator, testamentary or inter vivos
trustee, guardian, committee or conservator, or in any other
similar capacity, an aggregate of 25% or more of the voting
securities, or of any class of security, of any person, the
beneficial ownership of a specified percentage of which
would have constituted a conflicting interest under Section
6.8(c)(vi), (vii) or (viii). As to any such securities of
which the Trustee acquired ownership through becoming
executor, administrator, or testamentary trustee of an
estate which included them, the provisions of the preceding
sentence shall not apply for a period of two years from the
date of such acquisition, to the extent that such securities
included in such estate do not exceed 25% of such voting
securities or 25% of any such class of security. Promptly
after the dates of any such default upon Securities of any
series issued under this Indenture and annually in each
succeeding year that the Securities of any series issued
under this Indenture remain in default, the Trustee shall
make a check of its holdings of such securities in any of
the above-mentioned capacities as of such dates. If the
Issuer fails to make payment in full of principal of or
interest on any of the Securities when and as the same
becomes due and payable, and such failure continues for 30
days thereafter, the Trustee shall make a prompt check of
its holdings of such securities in any of the above-
mentioned capacities as of the date of the expiration of
such 30-day period, and after such date, notwithstanding the
foregoing provisions of this paragraph, all such securities
so held by the Trustee, with sole or joint control over such
securities vested in it, shall, but only so long as such
failure shall continue, be considered as though beneficially
owned by the Trustee for the purposes of subsections
(c)(vi), (vii) and (viii) of this Section; or
(x) except under the circumstances described in
Sections 6.13(b)(1), (3), (4), (5) and (6), the Trustee
shall be or shall become a creditor of the Issuer.
For the purposes of subsection (c)(i) of this Section and
Sections 5.9 and 5.10, the term "series of securities" or
"series" means a series, class or group of securities issuable
under an indenture pursuant to whose terms holders of one such
series may vote to direct the Trustee, or otherwise take action
pursuant to a vote of such holders, separately from holders of
another such series; provided, that "series of securities" or
"series" shall not include any series of securities issuable
under an indenture if all such series rank equally and are wholly
unsecured.
The specification of percentages in subsections (c)(v) to
(ix), inclusive, of this Section shall not be construed as
indicating that the ownership of such percentages of the
securities of a person is or is not necessary or sufficient to
constitute direct or indirect control for the purposes of
subsections (c)(iii) or (vii) of this Section.
For the purposes of subsections (c)(vi), (vii), (viii) and
(ix), of this Section, only,
(i) the terms "security" and "securities" shall
include only such securities as are generally known as
corporate securities, but shall not include any note or
other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more
banks, trust companies, or banking firms, or any certificate
of interest or participation in any such note or evidence of
indebtedness;
(ii) an obligation shall be deemed to be in
default when a default in payment of principal shall have
continued for 30 days or more and shall not have been cured;
and
(iii) the Trustee shall not be deemed to be the
owner or holder of (x) any security which it holds as
collateral security, as trustee or otherwise, for an
obligation which is not in default as defined in clause (ii)
above, or (y) any security which it holds as collateral
security under this Indenture, irrespective of any default
hereunder, or (z) any security which it holds as agent for
collection, or as custodian, escrow agent, or depositary, or
in any similar representative capacity.
Except as provided above, the word "security" or
"securities" as used in this Section shall mean any note, stock,
treasury stock, bond, debenture, evidence of indebtedness,
certificate of interest or participation in any profit-sharing
agreement, collateral trust certificate, preorganization
certificate or subscription, transferable share, investment
contract, voting trust certificate, certificate of deposit for a
security, fractional undivided interest in oil, gas or other
mineral rights, or, in general, any interest or instrument
commonly known as a "security", or any certificate of interest or
participation in, temporary or interim certificate for, receipt
for, guarantee of, or warrant or right to subscribe to or
purchase, any of the foregoing.
(d) For purposes of this Section:
(i) the term "underwriter" when used with
reference to the Issuer shall mean every person who, within
one year prior to the time as of which the determination is
made, has purchased from the Issuer with a view to, or has
offered or sold for the Issuer in connection with, the
distribution of any security of the Issuer outstanding at
such time, or has participated or has had a direct or
indirect participation in any such undertaking, or has
participated or has had a participation in the direct or
indirect underwriting of any such undertaking, but such term
shall not include a person whose interest was limited to a
commission from an underwriter or dealer not in excess of
the usual and customary distributors' or sellers'
commission;
(ii) the term "director" shall mean any director
of a corporation or any individual performing similar
functions with respect to any organization whether
incorporated or unincorporated;
(iii) the term "person" shall mean an
individual, a corporation, a partnership, an association, a
joint-stock company, a trust, an unincorporated
organization, or a government or political subdivision
thereof; as used in this paragraph, the term "trust" shall
include only a trust where the interest or interests of the
beneficiary or beneficiaries are evidenced by a security;
(iv) the term "voting security" shall mean any
security presently entitling the owner or holder thereof to
vote in the direction or management of the affairs of a
person, or any security issued under or pursuant to any
trust, agreement or arrangement whereby a trustee or
trustees or agent or agents for the owner or holder of such
security are presently entitled to vote in the direction or
management of the affairs of a person;
(v) the term "Issuer" shall mean any obligor upon
the Securities; and
(vi) the term "executive officer" shall mean the
president, every vice president, every trust officer, the
cashier, the secretary, and the treasurer of a corporation,
and any individual customarily performing similar functions
with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the
board of directors.
(e) The percentages of voting securities and other
securities specified in this Section shall be calculated in
accordance with the following provisions:
(i) a specified percentage of the voting
securities of the Trustee, the Issuer or any other person
referred to in this Section (each of whom is referred to as
a "person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the
holder or holders thereof to cast such specified percentage
of the aggregate votes which the holders of all the out-
standing voting securities of such person are entitled to
cast in the direction or management of the affairs of such
person;
(ii) a specified percentage of a class of
securities of a person means such percentage of the
aggregate amount of securities of the class outstanding;
(iii) the term "amount", when used in regard to
securities, means the principal amount if relating to
evidences of indebtedness, the number of shares if relating
to capital shares, and the number of units if relating to
any other kind of security;
(iv) the term "outstanding" means issued and not
held by or for the account of the issuer; the following
securities shall not be deemed outstanding within the
meaning of this definition:
(A) securities of an issuer held in a
sinking fund relating to securities of the issuer of
the same class;
(B) securities of an issuer held in a
sinking fund relating to another class of securities of
the issuer, if the obligation evidenced by such other
class of securities is not in default as to principal
or interest or otherwise;
(C) securities pledged by the issuer thereof
as security for an obligation of the issuer not in
default as to principal or interest or otherwise; and
(D) securities held in escrow if placed in
escrow by the issuer thereof;
provided, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof; and
(v) a security shall be deemed to be of the same
class as another security if both securities confer upon the
holder or holders thereof substantially the same rights and
privileges; provided, that, in the case of secured evidences
of indebtedness, all of which are issued under a single
indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed
sufficient to constitute such series different classes and
provided, further, that, in the case of unsecured evidences
of indebtedness, differences in the interest rates or
maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or
not they are issued under a single indenture.
(f) Except in the case of a default in the payment of
the principal of or interest on any Securities of any series
issued under this Indenture, or in the payment of any sinking or
purchase fund installment, the Trustee shall not be required to
resign as provided by this Section if the Trustee shall have
sustained the burden of proving, on application to the Commission
and after opportunity for hearing thereon, that
(i) the default under the Indenture may be cured
or waived during a reasonable period and under the
procedures described in such application, and
(ii) a stay of the Trustee's duty to resign will
not be inconsistent with the interests of holders of any
Securities of any series issued under this Indenture. The
filing of such an application shall automatically stay the
performance of the duty to resign until the Commission
orders otherwise.
SECTION 6.9 Persons Eligible for Appointment as Trustee.
The Trustee for each series of Securities hereunder shall at all
times be a corporation organized and doing business under the
laws of the United States of America or of any State or the
District of Columbia having a combined capital and surplus of at
least $5,000,000, and which is authorized under such laws to
exercise corporate trust powers and is subject to supervision or
examination by Federal, State or District of Columbia authority.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. At no
time shall the Trustee be an obligor or directly or indirectly
control, be controlled by, or under common control with any
obligor upon any Securities of any series issued under this
Indenture. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the
Trustee shall resign immediately in the manner and with the
effect specified in Section 6.10.
SECTION 6.10 Resignation and Removal; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees
hereafter appointed, may at any time resign with respect to one
or more or all series of Securities by giving written notice of
resignation to the Issuer and (i) if any Unregistered Securities
of a series affected are then Outstanding, by giving notice of
such resignation to the Holders thereof, by publication at least
once in an Authorized Newspaper in the Borough of Manhattan, The
City of New York, and at least once in an Authorized Newspaper in
London (and, if required by Section 3.6, at least once in an
Authorized Newspaper in Luxembourg), (ii) by mailing notice of
such resignation to the Holders of then Outstanding Registered
Securities of each series affected at their addresses as they
shall appear on the registry books. Upon receiving such notice
of resignation, the Issuer shall promptly appoint a successor
trustee or trustees with respect to the applicable series by
written instrument in duplicate, executed by authority of the
Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor
trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted
appointment within 30 days after the mailing of such notice of
resignation, the resigning trustee may petition any court of
competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of
a Security or Securities of the applicable series for at least
six months may, subject to the provisions of Section 5.12, on
behalf of himself and all others similarly situated, petition any
such court for the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall
occur:
(i) the Trustee shall fail to comply with the
provisions of Section 6.8 with respect to any series of
Securities after written request therefor by the Issuer or
by any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six
months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.9 and shall fail
to resign after written request therefor by the Issuer or by
any such Securityholder; or
(iii) the Trustee shall become incapable of
acting with respect to any series of Securities, or shall be
adjudged a bankrupt or insolvent, or a receiver or
liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with
respect to the applicable series of Securities and appoint a
successor trustee for such series by written instrument, in
duplicate, executed by order of the Board of Directors of the
Administrative Managing General Partner one copy of which instrument
shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the provisions of Section 5.12,
any Securityholder who has been a bona fide Holder of a Security
or Securities of such series for at least six months may on
behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor trustee with respect to such
series. Such court may thereupon, after such notice, if any, as
it may deem proper and prescribe, remove the Trustee and appoint
a successor trustee.
(c) The Holders of a majority in aggregate principal
amount of the Securities of each series at the time outstanding
may at any time remove the Trustee with respect to Securities of
such series and appoint a successor trustee with respect to the
Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer
the evidence provided for in Section 7.1 of the action in that
regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with
respect to any series and any appointment of a successor trustee
with respect to such series pursuant to any of the provisions of
this Section 6.10 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 6.11.
SECTION 6.11 Acceptance of Appointment by Successor
Trustee. Any successor trustee appointed as provided in Section
6.10 shall execute and deliver to the Issuer and to its
predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series
shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all
rights, powers, duties and obligations with respect to such
series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but,
nevertheless, on the written request of the Issuer or of the
successor trustee, upon payment of its charges then unpaid, the
trustee ceasing to act shall, subject to Section 10.4, pay over
to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers,
duties and obligations. Upon request of any such successor
trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to
such successor trustee all such rights and powers. Any trustee
ceasing to act shall, nevertheless, retain a prior claim upon all
property or funds held or collected by such trustee to secure any
amounts then due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the
predecessor Trustee and each successor trustee with respect to
the Securities of any applicable series shall execute and deliver
an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which
the predecessor Trustee is not retiring shall continue to be
vested in the predecessor Trustee, and shall add to or change any
of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts
hereunder by more than one trustee, it being understood that
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 under separate
indentures.
No successor trustee with respect to any series of
Securities shall accept appointment as provided in this Section
6.11 unless at the time of such acceptance such successor trustee
shall be qualified under the provisions of Section 6.8 and
eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as
provided in this Section 6.11, the Issuer shall give notice
thereof (a) if any Unregistered Securities of a series affected
are then Outstanding, to the Holders thereof, by publication of
such notice at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and at least once in
an Authorized Newspaper in London (and, if required by Section
3.6, at least once in an Authorized Newspaper in Luxembourg), (b)
if any Unregistered Securities of a series affected are then
Outstanding, to the Holders thereof who have filed their names
and addresses with the Trustee pursuant to Section 4.4(c)(ii), by
mailing such notice to such Holders at such addresses as were so
furnished to the Trustee (and the Trustee shall make such
information available to the Issuer for such purpose) and (c) to
the Holders of Registered Securities of each series affected, by
mailing such notice to such Holders at their addresses as they
shall appear on the registry books. If the acceptance of
appointment is substantially contemporaneous with the
resignation, then the notice called for by the preceding sentence
may be combined with the notice called for by Section 6.10. If
the Issuer fails to give such notice within ten days after
acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be given at the expense of the
Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or
Succession to Business of Trustee. Any corporation into which
the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all
the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of section
6.8 and eligible under the provisions of Section 6.9, without the
execution or filing of any paper or any further act on the part
of any of the parties hereto, anything herein to the contrary
notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the
Securities of any series shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and
deliver such Securities so authenticated; and, in case at that
time any of the Securities of any series shall not have been
authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in
the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the
certificate of the Trustee shall have; provided, that the right
to adopt the certificate of authentication of any predecessor
Trustee or to authenticate Securities of any series in the name
of any predecessor Trustee shall apply only to its successor or
successors by merger, conversion or consolidation.
SECTION 6.13 Preferential Collection of Claims Against the
Issuer. (a) Subject to the provisions of this Section, if the
Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Issuer within three
months prior to a default, as defined in subsection (c) of this
Section, or subsequent to such a default, then, unless and until
such default shall be cured, the Trustee shall set apart and hold
in a special account for the benefit of the Trustee individually,
the Holders of the Securities and the holders of other indenture
securities (as defined in this Section):
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in
respect of principal or interest, effected after the
beginning of such three months' period and valid as against
the Issuer and its other creditors, except any such
reduction resulting from the receipt or disposition of any
property described in subsection (a)(2) of this Section, or
from the exercise of any right of set-off which the Trustee
could have exercised if a petition in bankruptcy had been
filed by or against the Issuer upon the date of such
default; and
(2) all property received by the Trustee in respect of
any claim as such creditor, either as security therefor, or
in satisfaction or composition thereof, or otherwise, after
the beginning of such three months' period, or an amount
equal to the proceeds of any such property, if disposed of,
subject, however, to the rights, if any, of the Issuer and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of
the Trustee:
(A) to retain for its own account (i) payments made on
account of any such claim by any person (other than the
Issuer) who is liable thereon, (ii) the proceeds of the bona
fide sale of any such claim by the Trustee to a third
person, and (iii) distributions made in cash, securities or
other property in respect of claims filed against the Issuer
in bankruptcy or receivership or in proceedings for
reorganization pursuant to Title 11 of the United States
Code or applicable state law;
(B) to realize, for its own account, upon any property
held by it as security for any such claim, if such property
was so held prior to the beginning of such three months'
period;
(C) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property
held by it as security for any such claim, if such claim was
created after the beginning of such three months' period and
such property was received as security therefor simul-
taneously with the creation thereof, and if the Trustee
shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause
to believe that a default as defined in subsection (c) of
this Section would occur within three months; or
(D) to receive payment on any claim referred to in
paragraph (B) or (C), against the release of any property
held as security for such claim as provided in such
paragraph (B) or (C), as the case may be, to the extent of
the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three months' period for
property held as security at the time of such substitution shall,
to the extent of the fair value of the property released, have
the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying
or refunding any pre-existing claim of the Trustee as such
creditor, such claim shall have the same status as such pre-
existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof
shall be apportioned between the Trustee, the Securityholders and
the Holders of other indenture securities in such manner that the
Trustee, such Securityholders and the Holders of other indenture
securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the
Issuer in bankruptcy or receivership or in proceedings for reor-
ganization pursuant to Title 11 of the United States Code or
applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Issuer of the
funds and property in such special account and before crediting
to the respective claims of the Trustee, such Securityholders and
the Holders of other indenture securities dividends on claims
filed against the Issuer in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the United
States Code or applicable State law, but after crediting thereon
receipts on account of the indebtedness represented by their
respective claims from all sources other than from such dividends
and from the funds and property so held in such special account.
As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such
claim, in bankruptcy or receivership or in proceedings for
reorganization pursuant to Title 11 of the United States Code or
applicable State law, whether such distribution is made in cash,
securities or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such
claim. The court in which such bankruptcy, receivership or
proceeding for reorganization is pending shall have jurisdiction
(i) to apportion between the Trustee, such Securityholders and
the Holders of other indenture securities, in accordance with the
provisions of this paragraph, the funds and property held in such
special account and the proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of
this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee, such Securityholders
and the Holders of other indenture securities with respect to
their respective claims, in which event it shall not be necessary
to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such
claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or
otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee who has resigned or been removed after the
beginning of such three months' period shall be subject to the
provisions of this subsection (a) as though such resignation or
removal had not occurred. If any Trustee has resigned or been
removed prior to the beginning of such three months, period, it
shall be subject to the provisions of this subsection (a) if and
only if the following conditions exist:
(i) the receipt of property or reduction of claim
which would have given rise to the obligation to account, if
such Trustee had continued as trustee, occurred after the
beginning of such three months' period; and
(ii) such receipt of property or reduction of
claim occurred within three months after such resignation or
removal.
(b) There shall be excluded from the operation of this
Section a creditor relationship arising from
(1) the ownership or acquisition of securities
issued under any indenture or any security or securities
having a maturity of one year or more at the time of
acquisition by the Trustee;
(2) advances authorized by a receivership or
bankruptcy court of competent jurisdiction or by this
Indenture for the purpose of preserving any property which
shall at any time be subject to the lien of this Indenture
or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advance and of the
circumstances surrounding the making thereof is given to the
Securityholders at the time and in the manner provided in
this Indenture;
(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent, fiscal
agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of
services rendered or premises rented or an indebtedness
created as a result of goods or securities sold in a cash
transaction as defined in subsection (c)(3) below;
(5) the ownership of stock or of other securities
of a corporation organized under the provisions of Section
25(a) of the Federal Reserve Act, as amended, which is
directly or indirectly a creditor of the Issuer; or
(6) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of self-
liquidating paper as defined in subsection (c)(4) of this
Section.
(c) As used in this Section:
(1) the term "default" shall mean any failure to
make payment in full of the principal of or interest upon
any of the Securities or upon the other indenture securities
when and as such principal or interest becomes due and
payable;
(2) the term "other indenture securities" shall
mean securities upon which the Issuer is an obligor (as
defined in the Trust Indenture Act of 1939) outstanding
under any other indenture (i) under which the Trustee is
also trustee, (ii) which contains provisions substantially
similar to the provisions of subsection (a) of this Section,
and (iii) under which a default exists at the time of the
apportionment of the funds and property held in said special
account;
(3) the term "cash transaction" shall mean any
transaction in which full payment for goods or securities
sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn
upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" shall mean
any draft, bill of exchange, acceptance or obligation which
is made, drawn, negotiated or incurred by the Issuer for the
purpose of financing the purchase, processing, manufacture,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to,
possession of, or a lien upon the goods, wares or
merchandise or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously
constituting the security, provided the security is received
by the Trustee simultaneously with the creation of the
creditor relationship with the Issuer arising from the
making, drawing, negotiating or incurring of the draft, bill
of exchange, acceptance or obligation; and
(5) the term "Issuer" shall mean any obligor upon
the Securities.
SECTION 6.14 Appointment of Authenticating Agent. As long
as any Securities of a series remain Outstanding, the Trustee
may, by an instrument in writing, appoint with the approval of
the Issuer an authenticating agent (the "Authenticating Agent")
which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon exchange, registration of
transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such
Authenticating Agent shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee. Whenever reference is made in
this Indenture to the authentication and delivery of Securities
of any series by the Trustee or to the Trustee's Certificate of
Authentication, such reference shall be deemed to include
authentication and delivery an behalf of the Trustee by an
Authenticating Agent for such series and a Certificate of
Authentication executed on behalf of the Trustee by such
Authenticating Agent. Such Authenticating Agent shall at all
times be a corporation organized and doing business under the
laws of the United States of America or of any State, authorized
under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $5,000,000 (determined
as provided in Section 6.9 with respect to the Trustee) and
subject to supervision or examination by Federal or State
authority.
Any corporation into which any 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 any Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency business of
any Authenticating Agent, shall continue to be the Authenticating
Agent with respect to all series of Securities for which it
served as Authenticating Agent without the execution or filing of
any paper or any further act on the part of the Trustee or such
Authenticating Agent. Any Authenticating Agent may at any time,
and if it shall cease to be eligible shall, resign by giving
written notice of resignation to the Trustee and to the Issuer.
The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice thereof to the
Authenticating Agent and to the Issuer. Upon receiving such a
notice of resignation or upon such a termination, or in case at
any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect
to one or more series of Securities, the Trustee may upon receipt
of an Issuer Order appoint a successor Authenticating Agent and
the Issuer shall provide notice of such appointment to all
Holders of Securities of such series in the manner and to the
extent provided in Section 11.4. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally
named as Authenticating Agent. The Issuer agrees to pay to the
Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any
series shall have no responsibility or liability for any action
taken by it as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or
taken by a specified percentage in principal amount of the
Securityholders of any or all series may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such specified percentage of Securityholders in
person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to
the Trustee. Proof of execution of any instrument or of a
writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Sections 6.1 and 6.2)
conclusive in favor of the Trustee and the Issuer, if made in the
manner provided in this Article.
SECTION 7.2 Proof of Execution of Instruments and of
Holding of Securities. Subject to Sections 6.1 and 6.2, the
execution of any instrument by a Securityholder or his agent or
proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder
of any instrument may be proved by the certificate of any
notary public or other officer of any jurisdiction
authorized to take acknowledgments of deeds or administer
oaths that the Person executing such instruments
acknowledged to him the execution thereof, or by an
affidavit of a witness to such execution sworn to before any
such notary or other such officer. Where such execution is
by or on behalf of any legal entity other than an
individual, such certificate or affidavit shall also
constitute sufficient proof of the authority of the Person
executing the same. The fact of the holding by any Holder
of an Unregistered Security of any series, and the
identifying number of such Security and the date of his
holding the same, may be proved by the production of such
Security or by a certificate executed by any trust company,
bank, or recognized securities dealer wherever situated
satisfactory to the Trustee, if such certificate shall be
deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date
thereof a Security of such series bearing a specified
identifying number was deposited with or exhibited to such
trust company, bank, or recognized securities dealer by the
Person named in such certificate. Any such certificate may
be issued in respect of one or more Unregistered Securities
of one or more series specified therein. The holding by the
Person named in any such certificate of any Unregistered
Securities of any series specified therein shall be presumed
to continue for a period of one year from the date of such
certificate unless at the time of any determination of such
holding (1) another certificate bearing a later date issued
in respect of the same Securities shall be produced, or (2)
the Security of such series specified in such certificate
shall be produced by some other Person, or (3) the Security
of such series specified in such certificate shall have
ceased to be Outstanding. Subject to Sections 6.1 and 6.2,
the fact and date of the execution of any such instrument
and the amount and numbers of Securities of any series held
by the Person so executing such instrument and the amount
and numbers of any Security or Securities for such series
may also be proven in accordance with such reasonable rules
and regulations as may be prescribed by the Trustee for such
series or in any other manner which the Trustee for such
series may deem sufficient.
(b) In the case of Registered Securities, the
ownership of such Securities shall be proved by the Security
register or by a certificate of the Security registrar.
SECTION 7.3 Holders to be Treated as Owners. The Issuer,
the Trustee and any agent of the Issuer or the Trustee may deem
and treat the person in whose name any Registered Security shall
be registered upon the Security register for such series as the
absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or
on account of the principal of and, subject to the provisions of
this Indenture, interest on such Security and for all other
purposes; and neither the Issuer nor the Trustee nor any agent of
the Issuer or the Trustee shall be affected by any notice to the
contrary. The Issuer, the Trustee and any agent of the Issuer or
the Trustee may treat the Holder of any Unregistered Security and
the Holder of any Coupon as the absolute owner of such
Unregistered Security or Coupon (whether or not such Unregistered
Security or Coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes
and neither the Issuer, the Trustee, nor any agent of the Issuer
or the Trustee shall be affected by any notice to the contrary.
All such payments so made to any such person, or upon his order,
shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys
payable upon any such Unregistered Security or Coupon.
SECTION 7.4 Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Outstanding Securities of any or
all series have concurred in any direction, consent or waiver
under this Indenture, Securities which are owned by the Issuer or
any other obligor on the Securities with respect to which such
determination is being made or by any person directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on
the Securities with respect to which such determination is being
made shall be disregarded and deemed not to be Outstanding for
the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver only Securities
which the Trustee knows are 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 other obligor upon the Securities or any person directly
or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on
the Securities. In case of a dispute as to such right, the
advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice.
Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officer's Certificate listing and identifying
all Securities, if any, known by the Issuer to be owned or held
by or for the account of any of the above-described persons; and,
subject to Sections 6.1 and 6.2, the Trustee shall be entitled to
accept such Officer's Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not
listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 Right of Revocation of Action Taken. At any
time prior to (but not after) the evidencing to the Trustee, as
provided in Section 7.1, of the taking of any action by the
Holders of the percentage in aggregate principal amount of the
Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to
be included among the serial numbers of the Securities the
Holders of which have consented to such action may, by filing
written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as
concerns such Security. Except as aforesaid any such action
taken by the Holder of any Security shall be conclusive and
binding upon such Holder and upon all future Holders and owners
of such Security and of any Securities issued in exchange or
substitution therefor or on registration of transfer thereof,
irrespective of whether or not any notation in regard thereto is
made upon any such Security. Any action taken by the Holders of
the percentage in aggregate principal amount of the Securities of
any or all series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively
binding upon the Issuer, the Trustee and the Holders of all the
Securities affected by such action.
SECTION 7.6 Record Date for Consents and Waivers. The
Issuer may, but shall not be obligated to, direct the Trustee to
establish a record date for the purpose of determining the record
date for the purpose of determining the Persons entitled to (i)
waive any past default with respect to the Securities of such
series in accordance with Section 5.10 of the Indenture, or (ii)
consent to any supplemental indenture in accordance with Section
8.2 of the Indenture. If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and any such
Persons, shall be entitled to waive any such past default or
consent to any such supplemental indenture or to revoke any such
waiver or consent, whether or not such Holder remains a Holder
after such record date; provided, however, that unless such
waiver or consent is obtained from the Holders, or duly
designated proxies, of the requisite principal amount of
Outstanding Securities of such series prior to the date which is
the 90 day after such record date, any such waiver or consent
previously given shall automatically and without further action
by any Holder be cancelled and of no further effect.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Administrative Managing General Partner, when
authorized by a resolution of its Board of Directors and acting
on behalf of the Issuer (which resolution may provide general
terms or parameters for such action and may provide that the
specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), and the Trustee may from
time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the
date of the execution thereof) for one or more of the following
purposes:
(a) to convey, transfer, assign, mortgage or pledge to
the Trustee as security for the Securities of one or more
series any property or assets;
(b) to evidence the succession of another entity to
the Issuer, or successive successions, and the assumption by
the successor entity of the covenants, agreements and
obligations of the Issuer pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the
Issuer and the Trustee shall consider to be for the protec-
tion of the Holders of Securities or Coupons, and to make
the occurrence, or the occurrence and continuance, of a
default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting the
enforcement of all or any of the several remedies provided
in this Indenture as herein set forth; provided, that in
respect of any such additional covenant, restriction, condi-
tion or provision such supplemental indenture may provide
for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement
upon such an Event of Default or may limit the remedies
available to the Trustee upon such an Event of Default or
may limit the right of the Holders of a majority in
aggregate principal amount of the Securities of such series
to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement
any provision contained herein or in any supplemental
indenture which may be defective or inconsistent with any
other provision contained herein or in any supplemental
indenture, or to make any other provisions as the Issuer may
deem necessary or desirable, provided that no such action
shall adversely affect the interests of the Holders of the
Securities or Coupons;
(e) to establish the form or terms of Securities of
any series or of the Coupons appertaining to such Securities
as permitted by Sections 2.1 and 2.3; and
(f) 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 6.11.
The Trustee is hereby authorized to join with the Issuer in
the execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer,
assignment, mortgage or pledge of any property thereunder, but
the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed without the consent of the Holders
of any of the Securities at the time outstanding, notwithstanding
any of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in
Article Seven) of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time
Outstanding of any series affected by such supplemental
indenture, the Administrative General Partner, when authorized by
a resolution of its Board of Directors and acting on behalf of
the Issuer (which resolution may provide general terms or
parameters for such action and may provide that the specific
terms of such action may be determined in accordance with or
pursuant to an Issuer Order), and the Trustee may, from time to
time and at any time, enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as in force at the date of execution
thereof) for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any
manner the rights of the Holders of the Securities of such series
or of the Coupons appertaining to such Securities; provided, that
no such supplemental indenture shall (a) extend the final
maturity of any Security, or reduce the principal amount thereof,
or reduce the rate or extend the time of payment of interest
thereon, or reduce or alter the method of computation of any
amount payable on redemption or repayment thereof (or the time at
which any such redemption may be made), or make the principal
thereof (including any amount in respect of original issue
discount), or interest thereon payable in any coin or currency
other than that provided in the Securities and Coupons or in
accordance with the terms thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be
due and payable upon an acceleration of the maturity thereof
pursuant to Section 5.1 or the amount thereof provable in
bankruptcy pursuant to Section 5.2, or alter the provisions of
Section 11.11 or 11.12 or impair or affect the right of any
Securityholder to institute suit for the payment thereof or, if
the Securities provide therefor, any right of repayment at the
option of the Securityholder, in each case without the consent of
the Holder of each Security so affected, provided, no consent of
any Holder of any Security shall be necessary under this Section
8.2 to permit the Trustee and the Issuer to execute supplemental
indentures pursuant to Section 8.1(e) of this Indenture, or (b)
reduce the aforesaid percentage of Securities of any series, the
consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of
each Security so affected.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of Holders of
Securities of such series, or of Coupons appertaining to such
Securities, with respect to such covenant or provision, shall be
deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series or of the Coupons
appertaining to such Securities.
Upon the request of the Administrative Managing General Partner,
accompanied by a copy of a resolution of the Board of Directors
and acting on behalf of the Issuer (which resolution may provide
general terms or parameters for such action and may provide that
the specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order) certified by the secretary
or an assistant secretary of the Administrative General Managing
Partner authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the
consent of the Holders of the Securities as aforesaid and other
documents, if any, required by Section 7.1, the Trustee shall join
with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee
of any supplemental indenture pursuant to the provisions of this
Section, the Trustee shall give notice thereof (i) to the Holders
of then Outstanding Registered Securities of each series affected
thereby, by mailing a notice thereof by first-class mail to such
Holders at their addresses as they shall appear on the Security
register, (ii) if any Unregistered Securities of a series
affected thereby are then Outstanding, to the Holders thereof who
have filed their names and addresses with the Trustee pursuant to
Section 4.4(c)(ii), by mailing a notice thereof by first-class
mail to such Holders at such addresses as were so furnished to
the Trustee and (iii) if any Unregistered Securities of a series
affected thereby are then Outstanding, to all Holders thereof, by
publication of a notice thereof at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and
at least once in an Authorized Newspaper in London (and, if
required by Section 3.6, at least once in an Authorized Newspaper
in Luxembourg), and in each case such notice shall set forth in
general terms the substance of such supplemental indenture. Any
failure of the Issuer to give such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the
provisions hereof, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders
of Securities of each series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture
for any and all purposes.
SECTION 8.4 Documents to be Given to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an
Officer's Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to
this Article Eight complies with the applicable provisions of
this Indenture.
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures. Securities of any series authenticated
and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article may bear a notation in
form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the
Securities of such series then Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions. The Issuer
covenants that it will not merge or consolidate with any
corporation, partnership, or other entity or sell, lease or
convey all or substantially all of its assets to any other
person, unless (i) either the Issuer shall be the surviving
entity, or the successor entity or the person which acquires by
sale, lease or conveyance substantially all the assets of the
Issuer (if other than the Issuer) shall be a corporation or
partnership organized under the laws of the United States of
America or any State thereof or the District of Columbia and
shall expressly assume the due and punctual payment of the
principal of and interest on all the Securities and Coupons, if
any, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions
of this Indenture to be performed or observed by the Issuer, by
supplemental indenture in form satisfactory to the Trustee,
executed and delivered to the Trustee by such entity, and (ii)
the Issuer, such person or such successor entity, as the case may
be, shall not, immediately after such merger or consolidation, or
such sale, lease or conveyance, be in default in the performance
of any such covenant or condition.
SECTION 9.2 Successor Entity Substituted. In case of any
such consolidation, merger, sale, lease or conveyance, and
following such an assumption by the successor entity such
successor entity shall succeed to and be substituted for the
Issuer, with the same effect as if it had been named herein.
Such successor entity may cause to be signed, and may issue
either in its own name or in the name of the Issuer prior to such
succession any or all of the Securities issuable hereunder which
together with any Coupons appertaining thereto theretofore shall
not have been signed by the Issuer and delivered to the Trustee;
and, upon the order of such successor entity, instead of the
Issuer, and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities together with any Coupons
appertaining thereto which previously shall have been signed and
delivered by the officers of the Administrative Managing General
Partner to the Trustee for authentication, and any Securities which
such successor entity thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All of the Securities
so issued together with any Coupons appertaining thereto shall in
all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such
Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance such changes in phrasing and form (but not in
substance) may be made in the Securities and Coupons thereafter
to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease) the Issuer or any successor entity
which shall theretofore have become such in the manner described
in this Article shall be discharged from all obligations and
covenants under this Indenture and the Securities and may be
liquidated and dissolved.
SECTION 9.3 Opinion of Counsel Delivered to Trustee. The
Trustee, subject to the provisions of Sections 6.1 and 6.2, may
receive an Opinion of Counsel as conclusive evidence that any
such consolidation, merger, sale, lease or conveyance, and any
such assumption, and any such liquidation or dissolution,
complies with the applicable provisions of this Indenture.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. (A)
If at any time (a) the Issuer shall have paid or caused to be
paid the principal of and interest on all the Securities of any
series Outstanding hereunder and all unmatured Coupons
appertaining thereto (other than Securities of such series and
Coupons appertaining thereto which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 2.9) as and when the same shall have become due and
payable, or (b) the Issuer shall have delivered to the Trustee
for cancellation all Securities of any series theretofore
authenticated and all unmatured Coupons appertaining thereto
(other than any Securities of such series and Coupons
appertaining thereto which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in
Section 2.9) or (c) in the case of any series of Securities where
the exact or maximum amount (including the currency of payment)
of principal of and interest due on which can be determined at
the time of making the deposit referred to in clause (ii) below,
(i) all the Securities of such series and all unmatured Coupons
appertaining thereto not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption, and (ii) the Issuer shall have irrevocably deposited
or caused to be deposited with the Trustee as trust funds the
entire amount in cash (other than moneys repaid by the Trustee or
any paying agent to the Issuer in accordance with Section 10.4)
or, in the case of any series of Securities the payments on which
may only be made in Dollars, direct obligations of the United
States of America, backed by its full faith and credit ("U.S.
Government Obligations"), maturing as to principal and interest
at such times and in such amounts as will insure the availability
of cash, or a combination thereof, sufficient in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay (A) the principal and interest on all Securities
of such series and Coupons appertaining thereto on each date that
such principal or interest is due and payable and (B) any
mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series; and if, in any such
case, the Issuer shall also pay or cause to be paid all other
sums payable hereunder by the Issuer, then this Indenture shall
cease to be of further effect (except as to (i) rights of
registration of transfer and exchange of Securities of such
Series and of Coupons appertaining thereto and the Issuer's right
of optional redemption, if any, (ii) substitution of mutilated,
defaced, destroyed, lost or stolen Securities or Coupons, (iii)
rights of holders of Securities and Coupons appertaining thereto
to receive payments of principal thereof and interest thereon,
upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive
mandatory sinking fund payments, if any, (iv) the rights,
obligations, duties and immunities of the Trustee hereunder, (v)
the rights of the Holders of Securities of such series and
Coupons appertaining thereto as beneficiaries hereof with respect
to the property so deposited with the Trustee payable to all or
any of them, and (vi) the obligations of the Issuer under Section
3.2) and the Trustee, on demand of the Issuer accompanied by an
Officer's Certificate and an Opinion of Counsel and at the cost
and expense of the Issuer, shall execute proper instruments
acknowledging such satisfaction of and discharging this
Indenture; provided, that the rights of Holders of the Securities
and Coupons to receive amounts in respect of principal of and
interest on the Securities and Coupons held by them shall not be
delayed longer than required by then-applicable mandatory rules
or policies of any securities exchange upon which the Securities
are listed. The Issuer agrees to reimburse the Trustee for any
costs or expenses thereafter reasonably and properly incurred and
to compensate the Trustee for any services thereafter reasonably
and properly rendered by the Trustee in connection with this
Indenture or the Securities of such series.
(B) The following provisions shall apply to the
Securities of each series unless specifically otherwise provided
in a Board Resolution, Officer's Certificate or indenture
supplemental hereto provided pursuant to Section 2.3. In addition
to discharge of the Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities the exact or
maximum amounts (including the currency of payment) of principal
of and interest due on which can be determined at the time of
making the deposit referred to in clause (a) below, the Issuer
shall be deemed to have paid and discharged the entire
indebtedness on all the Securities of such a series and the
Coupons appertaining thereto on the 91st day after the date of
the deposit referred to in subparagraph (a) below, and the
provisions of this Indenture with respect to the Securities of
such series and Coupons appertaining thereto shall no longer be
in effect (except as to (i) rights of registration of transfer
and exchange of Securities of such series and of Coupons
appertaining thereto and the Issuer's right of optional
redemption, if any, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities or Coupons, (iii) rights of
Holders of Securities and Coupons appertaining thereto to receive
payments of principal thereof and interest thereon, upon the
original stated due dates therefor (but not upon acceleration),
and remaining rights of the Holders to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations, duties and
immunities of the Trustee hereunder, (v) the rights of the
Holders of Securities of such series and Coupons appertaining
thereto as beneficiaries hereof with respect to the property so
deposited with the Trustee payable to all or any of them and (vi)
the obligations of the Issuer under Section 3.2) and the Trustee,
at the expense of the Issuer, shall at the Issuer's request,
execute proper instruments acknowledging the same, if
(a) with reference to this provision the Issuer has
irrevocably deposited or caused to be irrevocably deposited
with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of such series and
Coupons appertaining thereto (i) cash in an amount, or (ii)
in the case of any series of Securities the payments on
which may only be made in Dollars, U.S. Government
Obligations, maturing as to principal and interest at such
times and in such amounts as will insure the availability of
cash or (iii) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent
public accountants expressed in a written certification
thereof delivered to the Trustee, to pay (A) the principal
and interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal or
interest is due and payable and (B) any mandatory sinking
fund payments on the dates on which such payments are due
and payable in accordance with the terms of the Indenture
and the Securities of such series;
(b) such deposit will not result in a breach or
violation of, or constitute a default under, any agreement
or instrument to which the Issuer is a party or by which it
is bound;
(c) the Issuer has delivered to the Trustee an
Opinion of Counsel based on the fact that (x) the Issuer has
received from, or there has been published by, the Internal
Revenue Service a ruling or (y) since the date hereof, there
has been a change in the applicable Federal income tax law,
in either case to the effect that, and such opinion shall
confirm that, the Holders of the Securities of such series
and Coupons appertaining thereto will not recognize income,
gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject
to Federal income tax on the same amount and in the same
manner and at the same times, as would have been the case if
such deposit, defeasance and discharge had not occurred; and
(d) the Issuer has delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for relating
to the defeasance contemplated by this provision have been
complied with.
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 10.4, all moneys
deposited with the Trustee pursuant to Section 10.1 shall be held
in trust and applied by it to the payment, either directly or
through any paying agent (including the Issuer acting as its own
paying agent), to the Holders of the particular Securities of
such series and of Coupons appertaining thereto for the payment
or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal
and interest; but such money need not be segregated from other
funds except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture
with respect to Securities of any series, all moneys then held by
any paying agent under the provisions of this Indenture with
respect to such series of Securities shall, upon demand of the
Issuer, be repaid to it or paid to the Trustee and thereupon such
paying agent shall be released from all further liability with
respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years. Any moneys deposited with or paid
to the Trustee or any paying agent for the payment of the
principal of or interest on any Security of any series or Coupons
attached thereto and not applied but remaining unclaimed for two
years after the date upon which such principal or interest shall
have become due and payable, shall, upon the written request of
the Issuer and unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property law, be
repaid to the Issuer by the Trustee for such series or such
paying agent, and the Holder of the Securities of such series and
of any Coupons appertaining thereto shall, unless otherwise
required by mandatory provisions of applicable escheat or
abandoned or unclaimed property laws, thereafter look only to the
Issuer for any payment which such Holder may be entitled to
collect, and all liability of the Trustee or any paying agent
with respect to such moneys shall thereupon cease; provided,
however, that the Trustee or such paying agent, before being
required to make any such repayment with respect to moneys
deposited with it for any payment (a) in respect of Registered
Securities of any series, shall at the expense of the Issuer,
mail by first class mail to Holders of such Securities at their
addresses as they shall appear on the Security register, and (b)
in respect of Unregistered Securities of any series the Holders
of which have filed their names and addresses with the Trustee
pursuant to Section 4.4(c)(ii), shall at the expense of the
Issuer, mail by first class mail to such Holders at such
addresses, and (c) in respect of Unregistered Securities of any
series, shall at the expense of the Issuer cause to be published
once, in an Authorized Newspaper in the Borough of Manhattan, The
City of New York and once in an Authorized Newspaper in London
(and if required by Section 3.6, once in an Authorized Newspaper
in Luxembourg), notice, that such moneys remain unpaid and that,
after a date specified therein, which shall not be less than
thirty days from the date of such mailing or publication, any
unclaimed balance of such money then remaining will be repaid to
the Issuer.
SECTION 10.5 Indemnity for U.S. Government Obligations.
The Issuer shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 10.1 or the
principal or interest received in respect of such obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Limited Partners, General Partners,
Incorporators, Stockholders, Officers and Directors of Issuer
Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or
in any Security, or because of any indebtedness evidenced
thereby, shall be had against any partner of the Issuer or any
incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer, of any
partner of the Issuer or of any successor, either directly or
through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise,
all such liability being expressly waived and released by the
acceptance of the Securities and the Coupons appertaining thereto
by the Holders thereof and as part of the consideration for the
issue of the Securities and the Coupons appertaining thereto.
SECTION 11.2 Provisions of Indenture for the Sole Benefit
of Parties and Holders of Securities and Coupons. Nothing in
this Indenture, in the Securities or in the Coupons appertaining
thereto, expressed or implied, shall give or be construed to give
to any person, firm or corporation, other than the parties hereto
and their successors and the Holders of the Securities or
Coupons, if any, any legal or equitable right, remedy or claim
under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole
benefit of the parties hereto and their successors and of the
Holders of the Securities or Coupons, if any.
SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and
agreements in this Indenture contained by or in behalf of the
Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and
Holders of Securities and Coupons. Any notice or demand which by
any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the Holders of Securities or
Coupons to or on the Issuer may be given or served by being
deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of
the Issuer is filed by the Issuer with the Trustee) to Freeport-
McMoRan Resource Partners, Limited Partnership, 1615 Poydras
Street, New Orleans, Louisiana 70112, Attention: Michael C.
Kilanowski, Jr., Secretary. Any notice, direction, request or
demand by the Issuer or any Holder of Securities or Coupons to or
upon the Trustee shall be deemed to have been sufficiently given
or served by being deposited postage prepaid, first-class mail
(except as otherwise specifically provided herein) addressed
(until another address of the Trustee is filed by the Trustee
with the Issuer) to Chemical Bank, 450 West 33rd Street, New
York, New York 10001, Attention: Corporate Trustee Administration
Department.
Where this Indenture provides for notice to Holders of
Registered Securities, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Security
register. Where this Indenture provided for notice to Holders of
Unregistered Securities who have filed their names and addresses
pursuant to Section 4.4(c)(ii), such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in such filing. In
any case where notice to such Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in
writing by the person entitled to receive such notice, either
before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be
filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon
such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to
the Issuer 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 reasonably satisfactory to the Trustee shall
be deemed to be a sufficient giving of such notice.
SECTION 11.5 Officer's Certificates and Opinions of
Counsel; Statements to be Contained Therein. Upon any
application or demand by the Issuer to the Trustee to take any
action under any of the provisions of this Indenture, the Issuer
shall furnish to the Trustee an Officer's Certificate stating
that all conditions precedent provided for in this Indenture
relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent have been complied with, except
that in the case of any such application or demand as to which
the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular
application or demand, no additional certificate or opinion need
be furnished.
Each certificate or opinion provided for in this Indenture
and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture shall
include (a) a statement that the person making such certificate
or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based, (c) a statement that, in
the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition
has been complied with and (d) a statement as to whether or not,
in the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an officer of the
Administrative Managing General Partner may be based, insofar as it
relates to legal matters, upon a certificate or opinion of or
representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with
respect to which is in the possession of the Administrative
Managing General Partner, upon the certificate, statement or opinion
of or representations by an officer or officers of the Administrative
Manaing General Partner, unless such counsel knows that the
certificate, statement or opinion or representations with respect to
the matters upon which his certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the
Administrative Managing General Partner or of counsel may be based,
insofar as it relates to accounting matters, upon a certificate
or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or
counsel, as the case may be, knows that the certificate or
opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain
a statement that such firm is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and
Holidays. If the date of maturity of interest on or principal of
the Securities of any series or any Coupons appertaining thereto
or the date fixed for redemption or repayment of any such
Security or Coupon shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be
made on the next succeeding Business Day with the same force and
effect as if made on the date of maturity or the date fixed for
redemption or repayment and no interest shall accrue for the
period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture With
Trust Indenture Act of 1939. If any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by any of
Sections 310 through 317 of the Trust Indenture Act of 1939, or
with another provision hereof which is required to be included
herein by any of Sections 310 to 317, inclusive, or by operation
of Section 318(c) thereof, such duties and required provision
shall control except as, and to the extent, such provision is
expressly excluded from this Indenture, as permitted by the Trust
Indenture Act of 1939.
SECTION 11.8 New York Law to Govern. This Indenture and
each Security and Coupon shall be deemed to be a contract under
the laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of such State, except as
may otherwise be required by mandatory provisions of law.
SECTION 11.9 Counterparts. This Indenture may be executed
in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one
and the same instrument.
SECTION 11.10 Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience
only and shall not affect the construction hereof.
SECTION 11.11 Securities in a Foreign Currency or in ECU.
Unless otherwise specified in an Officer's Certificate delivered
pursuant to Section 2.3 of this Indenture with respect to a
particular series of Securities, whenever for purposes of this
Indenture any action may be taken by the Holders of a specified
percentage in aggregate principal amount of Securities of all
series or all series affected by a particular action at the time
outstanding and, at such time, there are Outstanding Securities
of any series which are denominated in a coin or currency other
than Dollars (including ECUs), then the principal amount of
Securities of such series which shall be deemed to be Outstanding
for the purpose of taking such action shall be that amount of
Dollars that could be obtained for such amount at the Market
Exchange Rate. For purposes of this Section 11.11, Market
Exchange Rate shall mean the noon Dollar buying rate in New York
City for cable transfers of that currency as published by the
Federal Reserve Bank of New York; provided, however, in the case
of ECUs, Market Exchange Rate shall mean the rate of exchange
determined by the Commission of the European Communities (or any
successor thereto) as published in the Official Journal of the
European Communities (such publication or any successor
publication, the "Journal"). If such Market Exchange Rate is not
available for any reason with respect to such currency, the
Trustee shall use, in its sole discretion and without liability
on its part, such quotation of the Federal Reserve Bank of New
York or, in the case of ECUs, the rate of exchange as published
in the Journal, as of the most recent available date, or
quotations or, in the case of ECUs, rates of exchange from one or
more major banks in The City of New York or in the country of
issue of the currency in question, which for purposes of the ECU
shall be Brussels, Belgium, or such other quotations or, in the
case of ECU, rates of exchange as the Trustee shall deem
appropriate. The provisions of this paragraph shall apply in
determining the equivalent principal amount in respect of
Securities of a series denominated in a currency other than
Dollars in connection with any action taken by Holders of
Securities pursuant to the terms of this Indenture including
without limitation any determination contemplated in Section
5.1(f) or (g).
All decisions and determinations of the Trustee regarding
the Market Exchange Rate or any alternative determination
provided for in the preceding paragraph shall be in its sole
discretion and shall, in the absence of manifest error, be
conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer and all Holders.
SECTION 11.12 Judgment Currency. The Issuer agrees, to the
fullest extent it may effectively do so under applicable law,
that (a) if for the purpose of obtaining judgment in any court it
is necessary to convert the sum due in respect of the principal
of or interest on the Securities of any series (the "Required
Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a New
York Banking Day, then, to the extent permitted by applicable
law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the
Judgment Currency on the New York Banking Day preceding the day
on which final unappealable judgment is entered and (b) its
obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender,
or any recovery pursuant to any judgment (whether or not entered
in accordance with subsection (a)), in any currency other than
the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the
full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable and (iii) shall not
be affected by judgment being obtained for any other sum due
under this Indenture. For purposes of the foregoing, "New York
Banking Day" means any day except a Saturday, Sunday or a legal
holiday in The City of New York or a day on which banking
institutions in The City of New York are authorized or required
by law or executive order to close.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of
this Article shall be applicable to the Securities of any series
which are redeemable before their maturity or to any sinking fund
for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 2.3 for Securities of such
series.
SECTION 12.2 Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Registered Securities of
any series to be redeemed as a whole or in part at the option of
the Issuer shall be given by mailing notice of such redemption by
first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such
Holders of Securities of such series at their last addresses as
they shall appear upon the registry books. Notice of redemption
to all Holders of Unregistered Securities shall be published in
an Authorized Newspaper in the Borough of Manhattan, The City of
New York and in an Authorized Newspaper in London (and, if
required by Section 3.6, in an Authorized Newspaper in
Luxembourg), in each case, once in each of three successive
calendar weeks, the first publication to be not less than 30 nor
more than 60 days prior to the date fixed for redemption. Any
notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or
any defect in the notice to the Holder of any Security of a
series designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any
other Security of such series.
The notice of redemption to each such Holder shall specify,
the principal amount of each Security of such series held by such
Holder to be redeemed, the date fixed for redemption, the
redemption price and, if the redemption price was required to be
calculated pursuant to a formula or by reference to the value or
price of any one or more commodities, currencies, indices,
instruments or other securities, the method for such calculation
and the basis for such redemption price, the place or places of
payment, that payment will be made upon presentation and
surrender of such Securities and, in the case of Securities with
Coupons attached thereto, of all Coupons appertaining thereto
maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund,
or both, if such be the case, that interest accrued to the date
fixed for redemption will be paid as specified in such notice and
that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. In case any
Security of a series is to be redeemed in part only the notice of
redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date
fixed for redemption, upon surrender of such Security, a new
Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option 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.
On or before the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will
deposit with the Trustee or with one or more paying agents (or,
if the Issuer is acting as its own paying agent, set aside,
segregate and hold in trust as provided in Section 3.4) an amount
of money sufficient to redeem on the redemption date all the
Securities of such series so called for redemption at the
appropriate redemption price, together with accrued interest to
the date fixed for redemption. The Issuer will deliver to the
Trustee at least 70 days prior to the date fixed for redemption
an Officer's Certificate stating the aggregate principal amount
of Securities to be redeemed. In case of a redemption at the
election of the Issuer prior to the expiration of any restriction
on such redemption or subject to compliance with conditions
precedent, the Issuer shall deliver to the Trustee, prior to the
giving of any notice of redemption to Holders pursuant to this
Section, an Officer's Certificate stating that such restriction
or condition has been complied with.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall
deem appropriate and fair, Securities of such Series to be
redeemed in whole or in part. Securities may be redeemed in part
in multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee
shall promptly notify the Issuer in writing of the Securities of
such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the
principal amount thereof to be redeemed. For all purposes of
this Indenture, unless the context otherwise requires, all provi-
sions relating to the redemption of Securities of any series
shall relate, in the case of any Security redeemed or to be
redeemed only in part, to the portion of the principal amount of
such Security which has been or is to be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption.
It notice of redemption has been given as above provided, the
Securities or portions of Securities specified in such notice
shall become due and payable on the date and at the place stated
in such notice at the applicable redemption price, together with
interest accrued to the date fixed for redemption, and on and
after said date (unless the Issuer shall default in the payment
of such Securities at the redemption price, together with
interest accrued to said date) interest on the Securities or
portions of Securities so called for redemption shall cease to
accrue, and the unmatured Coupons, if any, appertaining thereto
shall be void, and, except as provided in Sections 6.5 and 10.4,
such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under this
Indenture, and the Holders thereof shall have no right in respect
of such Securities except the right to receive the redemption
price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a
place of payment specified in said notice, together with all
Coupons, if any, appertaining thereto maturing after the date
fixed for redemption, said Securities or the specified portions
thereof shall be paid and redeemed by the Issuer at the
applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that payment
of interest becoming due on or prior to the date fixed for
redemption shall be payable in the case of Securities with
Coupons attached thereto, to the Holders of the Coupons for such
interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities
registered as such on the relevant record date subject to the
terms and provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until
paid or duly provided for, bear interest from the date fixed for
redemption at the rate of interest or Yield to Maturity (in the
case of an Original Issue Discount Security) borne by such
Security.
If any Security with Coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant Coupons
maturing after the date fixed for redemption, the surrender of
such missing Coupon or Coupons may be waived by the Issuer and
the Trustee, if there be furnished to each of them such security
or indemnity as they may require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and
deliver to or on the order of the Holder thereof, at the expense
of the Issuer, a new Security or Securities of such series, of
authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities From
Eligibility for Selection for Redemption. Securities shall be
excluded from eligibility for selection for redemption if they
are identified by registration and certificate number in an
Officer's Certificate delivered to the Trustee at least 45 days
prior to the last date on which notice of redemption may be given
as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity
specifically identified in such written statement as directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the
terms of the Securities of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of
such minimum amount provided for by the terms of the Securities
of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made
is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash,
the Issuer may at its option (a) deliver to the Trustee
Securities of such series theretofore purchased or otherwise
acquired (except upon redemption pursuant to the mandatory
sinking fund) by the Issuer or receive credit for Securities of
such series (not previously so credited) theretofore purchased or
otherwise acquired (except as aforesaid) by the Issuer and
delivered to the Trustee for cancellation pursuant to Section
2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so
credited) redeemed by the Issuer through any optional redemption
provision contained in the terms of such series. Securities so
delivered or credited shall be received or credited by the
Trustee at the sinking fund redemption price specified in such
Securities.
On or before the 60th day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the
Trustee an Officer's Certificate (which need not contain the
statements required by Section 11.5) (a) specifying the portion
of the mandatory sinking fund payment to be satisfied by payment
of cash and the portion to be satisfied by credit of Securities
of such series and the basis for such credit, (b) stating that
none of the Securities of such series to be so credited has
theretofore been so credited, (c) stating that no defaults in the
payment of interest or Events of Default with respect to such
series have occurred (which have not been waived or cured) and
are continuing and (d) stating whether or not the Issuer intends
to exercise its right to make an optional sinking fund payment
with respect to such series and, if so, specifying the amount of
such optional sinking fund payment which the Issuer intends to
pay on or before the next succeeding sinking fund payment date.
Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled
to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such Officer's
Certificate (or reasonably promptly thereafter if acceptable to
the Trustee). Such Officer's Certificate shall be irrevocable
and upon its receipt by the Trustee the Issuer shall become
unconditionally obligated to make all the cash payments or
payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on
or before any such 60th day, to deliver such Officer's
Certificate and Securities (subject to the parenthetical clause
in the second preceding sentence) specified in this paragraph, if
any, shall not constitute a default but shall constitute, on and
as of such date, the irrevocable election of the Issuer (i) that
the mandatory sinking fund payment for such series due on the
next succeeding sinking fund payment date shall be paid entirely
in cash without the option to deliver or credit Securities of
such series in respect thereof and (ii) that the Issuer will make
no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or
optional or both) to be made in cash on the next succeeding
sinking fund payment date plus any unused balance of any
preceding sinking fund payments made in cash shall exceed $50,000
(or the equivalent thereof in any Foreign Currency or ECU) or a
lesser sum in Dollars (or the equivalent thereof in any Foreign
Currency or ECU) if the Issuer shall so request with respect to
the Securities of any particular series, such cash shall be
applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at,the sinking fund
redemption price together with accrued interest to the date fixed
for redemption. If such amount shall be $50,000 (or the
equivalent thereof in any Foreign Currency or ECU) or less and
the Issuer makes no such request then it shall be carried over
until a sum in excess of $50,000 (or the equivalent thereof in
any Foreign Currency or ECU) is available. The Trustee shall
select, in the manner provided in Section 12.2, for redemption on
such sinking fund payment date a sufficient principal amount of
Securities of such series to absorb said cash, as nearly as may
be, and shall (if requested in writing by the Issuer) inform the
Issuer of the serial numbers of the Securities of such series (or
portions thereof) so selected. The Trustee, in the name and at
the expense of the Issuer (or the Issuer, if it shall so request
the Trustee in writing) shall cause notice of redemption of the
Securities of such series to be given in substantially the manner
provided in Section 12.2 (and with the effect provided in Section
12.3) for the redemption of Securities of such series in part at
the option of the Issuer. The amount of any sinking fund
payments not so applied or allocated to the redemption of
Securities of such series shall be added to the next cash sinking
fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated
maturity date of the Securities of any particular series (or
earlier, if such maturity is accelerated), which are not held for
the payment or redemption of particular Securities of such series
shall be applied, together with other moneys, if necessary,
sufficient for the purpose, to the payment of the principal of,
and interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer
shall pay to the Trustee in cash or shall otherwise provide for
the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on the next following
sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or give any
notice of redemption of Securities for such series by operation
of the sinking fund during the continuance of a default in
payment of interest on such Securities or of any Event of Default
except that, where the giving of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it
shall have received from the Issuer a sum sufficient for such
redemption. Except as aforesaid, any moneys in the sinking fund
for such series at the time when any such default or Event of
Default shall occur, and any moneys thereafter paid into the
sinking fund, shall, during the continuance of such default or
Event of Default, be deemed to have been collected under Article
Five and held for the payment of all such Securities. In case
such Event of Default shall have been waived as provided in
Section 5.10 or the default cured on or before the sixtieth day
preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund
payment date in accordance with this Section to the redemption of
such Securities.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and the appropriate corporate
seals to be hereunto affixed and attested, all as of February
_____, 1996.
FREEPORT-MCMORAN RESOURCE PARTNERS,
LIMITED PARTNERSHIP
By: Freeport-McMoran Inc.
Administrative Managing
General Partner
By:
Senior Vice President
Attest:
By:
Secretary,
Freeport-McMoRan Inc.
CHEMICAL BANK, as Trustee
By:
Title:
Attest:
By:
Title:
-1-
STATE OF LOUISIANA )
)
)
PARISH OF ORLEANS )
On this _____ day of February, 1996, before me personally
came ____________________, to me personally known, who, being by
me duly sworn, did depose and say that he resides at
_____________________________; that he is the ________________ of
Freeport-McMoRan, Inc., the Administrative Managing General
Partner of Freeport-McMoRan Resource Partners, Limited
Partnership; that he knows the corporate seal of Freeport-
McMoRan, Inc.; that the seal affixed to the above instrument is
such corporate seal; that it was so affixed by authority of the
Board of Directors of Freeport-McMoRan, Inc., and that he signed
his name thereto by like authority.
Notary Public
STATE OF NEW YORK )
)
)
COUNTY OF NEW YORK )
On this _____ day of February, 1996, before me personally
came ____________________, to me personally known, who, being by
me duly sworn, did depose and say that he resides at
_____________________________; that he is the ________________ of
Chemical Bank, that he knows the corporate seal of Chemical Bank;
that the seal affixed to the above instrument is such corporate
seal; that it was so affixed by authority of the Board of
Directors of Chemical Bank, and that he signed his name thereto
by like authority.
Notary Public
AMENDMENT AND AGREEMENT
UNDER THE PARTNERSHIP AGREEMENT
This Amendment and Agreement Under the Partnership
Agreement (this "Agreement") dated as of January 23, 1996 by
and among (i) IMC-Agrico GP Company ("IMC GPCo"), a Delaware
corporation and a subsidiary of IMC Global Operations Inc.,
a Delaware corporation ("Operations'), (ii) Agrico, Limited
Partnership (the "FRP Partner"), a Delaware limited
partnership of which Freeport-McMoRan Resource Partners,
Limited Partnership, a Delaware limited partnership ("FRP"),
owns a 99.8% limited partnership interest and Agrico, Inc.,
a Delaware corporation ("FRP GPCo"), owns a 0.2% general
partnership interest, (iii) IMC-Agrico MP, Inc. (the
"Managing Partner"), a Delaware corporation, (iv)
Operations, and (v) IMC-Agrico Company, a Delaware general
partnership (the "Partnership").
WHEREAS, IMC GPCo, the FRP Partner, the Managing
Partner and Operations are parties to an Amended and
Restated Partnership Agreement (the "Partnership Agreement")
dated as of July 1, 1993 and further amended and restated as
of May 26, 1995;
WHEREAS, IMC Global Inc., a Delaware corporation
("IMC"), Bull Merger Company, a wholly-owned subsidiary of
IMC ("Merger Sub"), and The Vigoro Corporation, a Delaware
corporation ("Vigoro"), have entered into an Agreement and
Plan of Merger dated as of November 13, 1995 (the "Merger
Agreement') which provides for the merger (the "Merger") of
Merger Sub with and into Vigoro, with Vigoro surviving as a
subsidiary of IMC, all of the outstanding common stock of
which will be owned by IMC;
WHEREAS, the date on which the Merger is consummated is
referred to herein as the "Merger Date"; and
WHEREAS, IMC GPCo, the FRP Partner, the Managing
Partner and the Partnership believe that certain amendments
to the Partnership Agreement are appropriate due to the
change in the nature of the business of the IMC Partner and
its Affiliates (each as defined in the Partnership
Agreement) resulting from the Merger;
NOW, THEREFORE, in consideration of the covenants and
agreements herein set forth and of other good and valuable
consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
Section 1. Except as otherwise defined or amended
herein, capitalized terms used in this Agreement shall have
the meanings ascribed to such terms in Exhibit A to the
Partnership Agreement.
Section 2.(a) Effective as of the Merger Date, the
Current Interests and Capital Interests of the FRP Partner
and the IMC Partner set out in Section 4.01(a) of the
partnership Agreement shall be modified as follows:
"In the quarter subsequent to the Merger Date, the
Current Interest of the FRP Partner shall be
increased and the Current Interest of the IMC
Partner shall be decreased, by 0.85%. In the
quarter in which the Merger Date occurs, the
Current Interest of the FRP Partner shall be
increased and the Current Interest of the IMC
Partner shall be decreased by 0.85% multiplied by
a fraction, the numerator of which will be the
number of days from the Merger Date to the end of
the quarter, and the denominator of which will be
the total number of days in the quarter. The
Capital Interest of the FRP Partner shall be
increased and the Capital Interest of the IMC
Partner shall be decreased, by 0.85% on the July 1
subsequent to the Merger Date.
During the IMC GPCo Liquidation Period, the
Current Interests of Operations and IMC GPCo shall
be equal to eighty percent (80%) and twenty
percent (20%, respectively, of the Current
Interests of the IMC Partner set forth above.
During the IMC GPCo Liquidation Period, the
Capital Interests of Operations and IMC GPCo shall
be equal to eighty percent (80%) and twenty
percent (20%), respectively, of the Capital
Interests of the IMC Partner set forth above."
Section 3. Effective as of the date hereof, the second
sentence of Section 6.04(b) of the Partnership Agreement
shall be amended and restated to read in its entirety as
follows:
"One IMC Representative and one FRP Representative
shall serve as Co-Chairmen of the Policy
Committee."
Section 4.Effective as of the date hereof, Article VI
of the Partnership Agreement shall be amended to add a new
Section 6.09 which shall read in its entirety as follows:
"During such time as the IMC Partner is the
Operating Partner, and subject to the other
provisions of this Article VI, the management of
the Partnership shall be organized as follows.
The IMC group executive responsible on behalf of
IMC for the Partnership (the "IMC Group
Executive") shall, subject to the approval of the
Policy Committee, appoint and terminate the
President of the Partnership (who shall be the
chief executive officer of the Partnership) and
his successors. The President shall be an
employee of the Managing Partner. The President
shall report to the IMC Group Executive and shall
be responsible for the profit and loss of the
Partnership. The President shall direct and
manage all of the Partnership's business affairs
(except the Animal Feed Ingredient Division),
including, but not limited to, the mining,
processing, marketing, sales, distribution, growth
and business development functions and financial
issues that affect profit and loss; managers of
those IMC functions who provide services for the
Partnership will be accountable to the President
with respect to their responsibilities to the
Partnership. The President shall hire, terminate
and replace the managers in the Partnership. The
President's authority, reporting and coordination
responsibilities with his superiors within IMC
shall be consistent with his responsibilities to
the Partnership and shall reflect practices
customary in the United States public companies.
Nothing in this provision shall limit the
Operating Partner from changing or reorganizing
its business in any respect (except that changes
in the president's reporting responsibility or
relationship shall be made only upon consent of
the Policy Committee).
The management objectives and compensation
structure of the President and those reporting to
him shall reflect their duty to manage the
business of the Partnership in the best interest
of the Partnership, and shall be reviewed and
approved by the Policy Committee annually. The
President's performance against those objectives
shall be evaluated by the IMC Group Executive, who
shall regularly review such evaluation with the
Policy Committee. The achievement of incentive
compensation targets and award of incentive
compensation to the President shall be determined
by the IMC Group Executive and reviewed and
approved by the Policy Committee prior to the
making of any award. The achievement of incentive
compensation to the managers reporting to the
President shall be determined by him and reviewed
with the IMC Group Executive.
The Animal Feed Ingredient Division of the
Partnership will report to the IMC Group
Executive, who shall be responsible to the Policy
Committee and to IMC management for ensuring the
effective interaction and coordination between the
general manager of the Partnership's Animal Feed
Ingredient Division and the other businesses of
the Partnership. The President shall review with
the Policy Committee on an annual basis management
evaluation and succession planning issues relating
to the Partnership. Except as set forth herein,
nothing in this Section 6.09 shall be construed as
(i) changing any of the IMC Partner's
responsibilities as Operating Partner, or (ii)
otherwise amending the Partnership Agreement."
Section 5. Effective as of the Merger Date, Section
9.12 of the Partnership Agreement shall be amended and
restated to read in its entirety as follows:
9.12 Transactions with Affiliates. Except
with respect to items (i)(B) and (ii) referred to
in the parenthetical phrase in the following
sentence, any transaction, agreement, arrangement
or understanding between or on behalf of the
Partnership, on the one hand, and the Operating
Partner or any Affiliate of the Operating Partner,
on the other hand, must be on terms no less
favorable to the Partnership than those which
could be obtained from an independent third party
providing similar goods or services of like
quality. All such transactions, agreements,
arrangements and understandings in an aggregate
amount in any Fiscal Year in excess of the Base
Affiliate Transaction Amount for such Fiscal Year
(other than (i) during any period during which the
IMC Partner is Operating Partner, (A) any
transactions, agreements, arrangements or
understandings with Operations' railcar repair
business located at Fitzgerald, Georgia on terms
no less favorable to the Partnership than those
which could be obtained from an independent third
party providing similar goods or services of like
quality and (B) any transactions, agreements,
arrangements and understandings with the Rainbow
Division of Operations or International Minerals &
Chemical (Canada) Global Limited ("IMC Canada
Ltd," formerly International Minerals & Chemical
Corporation (Canada) Limited) on the terms set
forth on Schedule 9.12 and (ii)(A) the Marketing
and Administrative Services Agreement, (B) the
Leasing Agreement, (C) the Materials Purchase and
Cost Sharing Agreement, (D) the Employee Cost
Sharing Agreement and (E) the Limestone Cost
Sharing Agreement) shall be subject to the
approval of the Policy Committee or the CEOs, as
the case may be, in accordance with Section
6.07(a) or (b). Partnership sales to the
Farmarkets Division shall be on the terms set
forth in Schedule 9.12. Nothing in this Section
9.12 shall in any way restrict or affect the right
of the Partnership to enter into transactions with
Affiliates of the Non-Operating Partners.
The Operating Partner will, and will cause its
Affiliates to (i) give the Non-Operating Partner
and its auditors and other authorized
representatives such access to the offices,
properties, books and records of such party, (ii)
furnish to the Non-Operating Partner and its
auditors and other authorized representatives such
financial and operating data and other information
as such Persons may reasonably request and (iii)
instruct its employees and auditors to cooperate
with the Non-Operating Partner and its auditors
and other authorized representatives, in each case
as may be reasonably requested by the Non-
Operating Partner to evaluate any transactions,
agreements, arrangements or understandings between
the Partnership or the Managing Partner on the one
hand, and the Operating Partner and its
Affiliates, on the other hand; provided that any
investigation pursuant to this Section shall be
conducted in such a manner as not to interfere
unreasonably with the conduct of business of the
Operating Partner and its Affiliates
Section 6.Effective as of July 1, 1995, Schedule 9.12
of the Partnership Agreement shall be amended and restated
to read in its entirety as follows:
"A. Sales to IMC Canada Ltd. of GTSP, DAP,
GMAP 11-52-0, GMAP 10-50-0 and PFS ("Canada
Products") shall be invoiced to Operations by IMC-
Agrico Company at the estimated IMC-Agrico Company
quarterly weighted average domestic sales
realization F.O.B. plant, subject to the
limitation described in Section D below,
("Quarterly Market Price") for each of Florida,
Louisiana, or offsites, depending upon the source
of the Canada Products, less 10%, so long as the
aggregate volume for the Canada Products does not
exceed 57,619 P2O5 tons for the fiscal year beginning
July 1. Sales of the Canada Products in any annual
period in excess of 57,619 P2O5 tons shall be invoiced
at 100% of the Quarterly market Price for Florida,
Louisiana or Offsites, depending upon the source of
the product.
Sales to IMC Canada Ltd. of any products
other than those listed above shall be invoiced to
Operations by IMC-Agrico Company at the Quarterly
Market Price for Florida, Louisiana or Offsites,
depending upon the source of the product.
B. Sales to Operations' Rainbow Division
("IMC Rainbow") of GTSP, DAP, MAP, GMAP 11-52-0,
GMAP 10-50-0 and PFS ("Rainbow Product(s)") shall
be invoiced to Operations by IMC-Agrico Company at
the Quarterly Market Price for Florida, Louisiana
or Offsites, depending upon the source of the
Rainbow Products, less 10%, but not less than full
production cost, so long as the aggregate volume
for the Rainbow Products does not exceed 95,200
P2O5 tons for the fiscal year beginning July 1. Sales
of the Rainbow Products in any annual period in
excess of 95,200 P2O5 tons shall be invoiced at 100%
of the Quarterly Market Price for Florida, Louisiana
or Offsites, depending upon the source of the product,
plus $2 per ton of product).
Sales to IMC Rainbow of any products other than
those listed above shall be invoiced to Operations by IMC-
Agrico company at the Quarterly Market Price for Florida,
Louisiana or Offsites, depending upon the source of the
product.
C. Sales to the Farmarkets Division of
GTSP, DAP, MAP, GMAP 10-52-0, GMAP 10-50-0 and PFS
shall be invoiced at 100% of the Quarterly Market
Price for Florida, Louisiana or Offsite, depending
upon the source of the product.
D. The weighted average domestic sales
realization, F.O.B. plant, shall be utilized to
determine the Quarterly Market Price of a given
product with respect to any quarter so long as the
total tons sold by domestic wholesale to non-
Affiliates to IMC are at least 75% of the
aggregate tons sold to IMC Canada, Ltd., IMC
Rainbow and Farmarkets, collectively, during such
quarter. If the total tons sold by domestic
wholesale of a given product to non-Affiliates of
IMC with respect to any quarter are less than 75%
of the aggregate tons sold to IMC Canada, Ltd.,
IMC Rainbow and Farmarkets, collectively, during
such quarter, the Policy Committee shall determine
an appropriate benchmark for determining such
quarterly market price.
E. Any transfer of sales responsibility
from IMC's wholesale division to IMC Rainbow or
Farmarkets must be approved by the Policy
Committee.
F. Estimated prices invoiced by IMC-Agrico
Company to IMC Canada Ltd., IMC Rainbow or the
Farmarkets Division shall be adjusted to actual
quarterly sales prices at the end of each quarter.
Final price adjustments shall be made within 20
days of the end of each fiscal quarter and within
45 days of the end of each fiscal year."
Section 7.(a) Effective as of the Merger Date, Section
2.08(b) of the Partnership Agreement shall be amended by
modifying clause (ii) of the first sentence as follows:
"(ii)subject to the last sentence of this Section
2.08(b) the conduct of the business of the Rainbow
and Farmarkets Divisions of IMC substantially as
currently conducted shall not constitute a breach
or violation of this Section 2.08(b)."
(b) Effective as of the Merger Date, Section
2.08(b) of the Partnership Agreement shall be amended to add
at the end thereof the following:
"Notwithstanding any provision to the
contrary contained in this Section 2.08(b), the
IMC Partner must present to the FRP Partner any
opportunity the IMC Partner may have to own,
manage, operate, control or invest in a business
that is engaged in the Phosphate Chemicals
Business proposed to be acquired by the IMC
Partner or an Affiliate thereof which, upon such
acquisition, would become part of the Rainbow
Division or the Farmarkets Division, unless all of
the following conditions are satisfied (and if
such conditions are satisfied there shall be no
obligations to present such business to the FRP
Partner):
(a) the business is not a major
competitor of the Partnership (a
business shall not be deemed to be a
major competitor for purposes of this
Section 2.08(b) if (A) the revenues
derived by such business from the (i)
production and wholesale sales of
phosphate-based fertilizers such as DAP,
MAP, GTSP, GMAP, PFs and P2O5 in unmixed
form, plus (ii) production of nitrogen-
based fertilizers such as ammonia, urea,
UAN, ammonium nitrate and ammonium sulfate
in unmixed form, did not account for more
than 10% of the total revenues of such
business during the thirty-six months
ending on the last day of the month
preceding the date on which the
acquisition of such business is
consummated, and (B) the revenues
described in the foregoing clause (A) of
this sentence, plus revenues derived
from the wholesale sale of nitrogen-
based fertilizers, did not account for
more than 20% of the total revenues of
the business during the thirty-six month
period); for purposes of this provision
wholesale sales shall mean sales made
for resale;
(b) the revenue produced by such
business represents (and can reasonably
be expected to represent) less than 25%
of the sales of Rainbow (if the business
will become part of the Rainbow Division
upon consummation of the acquisition) or
less than 25% of the sales of Farmarkets
(if the business will become part of the
Farmarkets Division upon consummation of
the acquisition);
(c) the location of the business
is such that distribution, warehousing
and other similar functions of the
Rainbow Division or the Farmarkets
Division, as the case may be, existing
as of the date of the acquisition would
support and complement the operations of
such business after the consummation of
the acquisition; and
(d) the common stock or other
securities of the business are not
listed on any national securities
exchange registered under the Securities
Exchange Act of 1934 or National Market
System of a national securities
association registered under the
Securities Exchange Act of 1934;
provided, however, that it shall be the intent of
Operations (but without implying any supply
obligation on the part of the Partnership) that
the additional phosphate products purchased by the
Rainbow Division or the Farmarkets Division as a
result of the acquisition of such business shall
be acquired (subject to the expiration of any
existing contracts of such business for the
purchase of phosphate products) from the
Partnership to the extent that such acquisition of
additional phosphate products from the Partnership
will not place the Rainbow Division or the
Farmarkets Division at a competitive disadvantage
or result in the impairment of beneficial
commercial relations of the Rainbow Division or
the Farmarkets Division; provided further, that
any such additional phosphate products supplied by
the Partnership shall be supplied at a price equal
to the lesser of (x) the price (as described in
Schedule 9.12 but no including the 10% discount to
the Rainbow Division) at which the Partnership
then sells phosphate products to the Rainbow
Division or the Farmarkets Division, as the case
may be, and (y) the price at which such business
may purchase phosphate products from a source
other than the Partnership."
Section 8.Effective as of the Merger Date, Exhibit A of
the Partnership Agreement shall be amended as follows:
(i) A definition of "Farmarkets Division"
shall be added as follows: "Farmarkets Division"
shall mean the business of the Farmarkets Division
as operated by The Vigoro Corporation as of the
date of the consummation of the merger of The
Vigoro Corporation with and into Bull Merger
Company, a wholly-owned subsidiary of Global.
(ii) The definition of "Phosphate Chemicals
Business" shall be amended (a) to add a the end of
the first sentence the following: "and (x) the
animal feed business" and (b) to delete the last
sentence thereof and replace it with the
following: "Notwithstanding the foregoing,
"Phosphate Chemicals Business" shall not include
the mixed fertilizer business.
Section 9.(a) Effective as of the date hereof, the IMC
Partner hereby appoints Wendell F. Bueche to serve as an IMC
Representative, and an IMC Representative shall resign as
IMC Representative.
(b) Effective as of the date hereof, the IMC
Partner hereby appoints Wendell F. Bueche as the IMC
Representative to serve as a Co-Chairman of the Policy
Committee, and the FRP Partner hereby appoints Rene
Latiolais as the FRP Representative to serve as a Co-
Chairman of the Policy Committee.
(c) Effective as of the date hereof, the Managing
Partner shall, subject to approval of the Policy Committee
of the Partnership, appoint a President of the Partnership.
Section 10.This Agreement is solely for the benefit of
the parties hereto and no provision of this Agreement shall
be deemed to confer upon third parties, any remedy, claim,
liability, reimbursement, cause of action or other right in
excess of those existing without reference to this
Agreement.
Section 11.This Agreement may be signed in counter
parts, Any single counterpart or set of counterparts
signed, in either case, by all the parties hereto shall
constitute a full and original agreement for all purposes.
IN WITNESS WHEREOF, the parties have signed this
Agreement as of the date first written above.
IMC-Agrico GP Company
By: /s/ Marschall I. Smith
___________________________
Name Printed: Marschall I. Smith
Title: Vice President
Agrico, Limited Partnership
By: Freeport-McMoRan Inc.,
its general partner
By: /s/ Rene L. Latiolais
___________________________________
Name Printed: Rene L. Latiolais
Title: President
IMC-Agrico MP, Inc.
By: /s/ Marschall I. Smith
___________________________________
Name Printed: Marschall I. Smith
Title: Vice President
IMC Global Operations, Inc.
(formerly IMC Fertilizer, Inc.)
By: /s/ Marschall I. Smith
___________________________________
Name Printed: Marschall I. Smith
Title: Senior Vice President
IMC-Agrico Company
By: IMC-Agrico MP, Inc.
By: /s/ Marschall I. Smith
___________________________________
Name Printed: Marschall I. Smith
Title: Vice President
FIRST AMENDMENT dated as of January 10, 1996, to the
Credit Agreement dated as of June 30, 1995, among FREEPORT-
McMoRan RESOURCE PARTNERS, LIMITED PARTNERSHIP, a Delaware
limited partnership ("FRP"), FREEPORT-McMoRan INC., a
Delaware corporation ("FTX"; FTX and FRP being the
"Borrowers"), certain financial institutions (collectively,
the "Banks"), CHEMICAL BANK, a New York banking corporation
("Chemical"), as administrative agent for the Banks (in such
capacity, the "Administrative Agent"), as collateral agent
for the Banks (in such capacity, the "Administrative
Agent"), as collateral agent for the Banks (in such
capacity, the "FRP Collateral Agent") under the FRP Security
Agreement and as collateral agent for the Banks and certain
other lenders (in such capacity, the "FTX Collateral Agent")
under the FTX Security Agreement, and THE CHASE MANHATTAN
BANK (NATIONAL ASSOCIATION), a national banking association
("Chase"), as documentary agent for the Banks (in such
capacity, the "Documentary Agent"; the Administrative Agent,
the FRP Collateral Agent, the FTX Collateral Agent and the
Documentary Agent being, collectively, the "Agents").
Capitalized terms used herein and not defined herein shall
have the meanings given such terms in the Credit Agreement.
The Borrowers, the Banks and the Agents have agreed
that certain provisions of the Agreement be waived and
amended in order that FRP may issue up to $150,000,000
principal amount of additional unsecured long-term debt.
Accordingly, the Borrowers, the Banks and the Agents agree
as follows:
SECTION 1.Amendment to the Credit Agreement. Effective
as of the Effective Date, Section 5.2(g)(ix) of the Credit
Agreement is hereby amended by the addition of the following
after the phrase "subject to Section 2.7(b)," appearing in
such clause:
"(x) up to $150,000,000 aggregate
principal amount of additional unsecured
Debt of FRP so long as such Debt has no
scheduled repayment of principal prior
to June 30, 2000, and the material
covenants and events of default therein
have been approved by the Agents;
provided that no Default or Event of
Default shall be in effect at the time
of issuance of such Debt or would result
therefrom and that the net proceeds
thereof are applied upon receipt to
prepayment of any outstanding Loans, and
(y)".
SECTION 2.Conditions to Effectiveness. (a) This
Amendment shall become effective on the date that each of
the following conditions shall have been satisfied (such
date of effectiveness being the "Effective Date"):
(a) receipt by Cravath, Swaine & Moore, special
counsel for the Banks, of executed counterparts of this
Amendment which, when taken together, bear the
signatures of FTX, FRP, the Agents and the Required
Banks;
(b) the representations and warranties on the
part of the Borrowers contained in Article III of the
Credit Agreement shall be true and correct in all
material respects at and as of the Effective Date as
though made on and as of such date;
(c) the Borrowers shall be in compliance with all
the terms and provisions set forth in this Agreement
and the Amendment to be observed or performed on their
part, and as of the Effective Date, no Event of Default
nor any event which upon notice or lapse of time or
both would constitute such an Event of Default shall
have occurred and be continuing; and
(d) all legal matters incident to this Amendment
shall be satisfactory to Cravath, Swaine & Moore,
special counsel for the Banks.
SECTION 3.Counterparts. This Amendment may be executed
in multiple counterparts, each of which shall constitute an
original, but all of which when taken together shall
constitute but one instrument.
SECTION 4.Limited Effect of Amendment. Section 1
hereof constitutes an amendment of Section 5.2(g)(ix) of the
Credit Agreement effective as of the Effective Date. Except
as, and until, expressly amended by such Section 1 as of the
Effective Date, the Credit Agreement shall continue in full
force and effect in accordance with the provisions thereof
as in effect prior to the Effective Date. Except as
expressly set forth herein, this Amendment shall not by
implication or otherwise limit, impair, constitute a waiver
of, or otherwise affect the rights and remedies of the Banks
and the Agents under the Credit Agreement, nor alter,
modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained
in the Credit Agreement, all of which are ratified and
affirmed in all respects and shall continue in full force
and effect. This Amendment shall apply and be effective
only with respect to the provision of the Credit Agreement
specifically referred to herein.
SECTION 5.APPLICABLE LAW. THIS AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
SECTION 6.Expenses. The Borrowers jointly and
severally shall pay all out-of-pocket expenses incurred by
the Agents in connection with the preparation of this
Amendment, including, but not limited to, the reasonable
fees and disbursements of Cravath, Swaine & Moore, special
counsel for the Banks.
SECTION 7.Headings. The headings of this Amendment are
for reference only and shall not limit or otherwise affect
the meaning hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their duly authorized officers
or agents as of the date first above written.
FREEPORT-McMoRan INC.
By: ______________________________
Name:
Title:
FREEPORT-McMoRan RESOURCE PARTNERS,
LIMITED PARTNERSHIP,
By: Freeport-McMoRan Inc.,
its Administrative Managing
General Partner,
By: ______________________________
Name:
Title:
CHEMICAL BANK, individually and as
Administrative Agent, FTX Collateral
Agent and FRP Collateral Agent,
By: ________________________________
Name:
Title:
THE CHASE MANHATTAN BANK (NATIONAL
ASSOCIATION) individually and as
Documentary Agent,
By: ________________________________
Name:
Title:
ABN AMRO BANK,
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
BARCLAYS BANK PLC,
By: _______________________________
Name:
Title:
THE FUJI BANK, LIMITED, HOUSTON AGENCY,
By: _________________________________
Name:
Title:
NATIONAL WESTMINSTER BANK PLC,
By: _________________________________
Name:
Title:
NATIONAL WESTMINSTER BANK PLC
(NASSAU BRANCH),
By: ______________________________
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED,
By: ______________________________
Name:
Title:
MELLON BANK,
By: ______________________________
Name:
Title:
INDUSTRIAL BANK OF JAPAN, LIMITED,
By: ______________________________
Name:
Title:
THE BANK OF NOVA SCOTIA,
By: ______________________________
Name:
Title:
BANK OF AMERICA ILLINOIS,
By: ______________________________
Name:
Title:
BANK OF MONTREAL,
By: ______________________________
Name:
Title:
CIBC INC.,
By: ______________________________
Name:
Title:
CoBANK, ACB,
By: ______________________________
Name:
Title:
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.
RABOBANK NEDERLAND,
NEW YORK BRANCH,
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
SOCIETE GENERALE, SOUTHWEST AGENCY,
By: ______________________________
Name:
Title:
NBD BANK,
By: ______________________________
Name:
Title:
HIBERNIA NATIONAL BANK,
By: ______________________________
Name:
Title:
THE MITSUBISHI BANK, LIMITED, HOUSTON
AGENCY,
By: ______________________________
Name:
Title:
NATIONAL BANK OF CANADA,
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
COMMERZBANK Aktiengesellschaft, Atlanta
Agency,
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
P.T. BANK RAKYAT INDONESIA (PERSERO),
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
BANK OF TOKYO TRUST COMPANY,
By: ______________________________
Name:
Title:
CHRISTIANIA BANK,
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE,
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
FIRST NATIONAL BANK OF COMMERCE,
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
BANK OF AUSTRALIA,
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
BANK OF SCOTLAND,
By: ______________________________
Name:
Title:
We hereby consent to the reference to our firm under the caption
"Legal Matters" as counsel to Freeport-McMoRan Resource Partners, Limited
Partnership contained in the propspectus, as amended and supplemented from
time to time, forming a part of the Registration Statement on Form S-3
(Registration No. 33-37441). In giving this consent, we do not admit that
we are within the category of persons whose consent is required under Section
7 of the Securities Act of 1933, as amended, or the general rules and
regulations of the Commission thereunder.
JONES, WALKER, WAECHTER, POITEVENT
CARRERE & DENEGRE, L.L.P.
Dated: February 13, 1996
___________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________________________
Freeport-McMoran Resource Partners,
Limited Partnership
(Exact name of obligor as specified in its charter)
Delaware 72-1067072
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1615 Poydras Street
New Orleans, Louisiana 70112
(Address of principal executive offices) (Zip Code)
___________________________________________
Senior Notes
(Title of the indenture securities)
_____________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
New York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9,
1982, February 28, 1985 and December 2, 1991 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 33-50010, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence Business
(see Exhibit 2 to Form T-1 filed in connection with Registration Statement
No. 33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate trust powers being contained in
the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1
filed in connection with Registration Statement No. 33-84460, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published pursuant
to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Chemical Bank, a corporation organized and existing under the laws
of the State of New York, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of New York and State of New York, on the 6th day of February,
1996.
CHEMICAL BANK
By /s/ Patricia Morabito
______________________
Patricia Morabito
Vice President
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9,
1982, February 28, 1985 and December 2, 1991 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 33-50010, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence Business
(see Exhibit 2 to Form T-1 filed in connection with Registration Statement
No. 33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate trust powers being contained in
the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1
filed in connection with Registration Statement No. 33-84460, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published pursuant
to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1995, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ................................. $ 5,319
Interest-bearing balances ......................... 3,591
Securities: ..............................................
Held to maturity securities................................ 6,402
Available for sale securities.............................. 22,966
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold ................................ 1,088
Securities purchased under agreements to resell ... 1,015
Loans and lease financing receivables:
Loans and leases, net of unearned income $76,064
Less: Allowance for loan and lease losses 1,878
Less: Allocated transfer risk reserve ... 104
Loans and leases, net of unearned income,
allowance, and reserve ............................ 74,082
Trading Assets ............................................ 28,967
Premises and fixed assets (including capitalized
leases)............................................ 1,380
Other real estate owned ................................... 65
Investments in unconsolidated subsidiaries and
associated companies............................... 160
Customer's liability to this bank on acceptances
outstanding ....................................... 1,187
Intangible assets ......................................... 467
Other assets .............................................. 6,418
TOTAL ASSETS .............................................. $153,107
=========
LIABILITIES
Deposits
In domestic offices ................................ $44,067
Noninterest-bearing .........................$14,227
Interest-bearing ............................ 29,840
In foreign offices, Edge and Agreement subsidiaries,
and IBF's .......................................... 37,004
Noninterest-bearing .........................$ 173
Interest-bearing ............................ 36,831
Federal funds purchased and securities sold under agree-
ments to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased ............................ 16,136
Securities sold under agreements to repurchase ..... 1,274
Demand notes issued to the U.S. Treasury ................... 903
Trading liabilities ........................................ 22,513
Other Borrowed money:
With original maturity of one year or less ......... 11,674
With original maturity of more than one year ....... 613
Mortgage indebtedness and obligations under capitalized
leases ............................................. 16
Bank's liability on acceptances executed and outstanding 1,190
Subordinated notes and debentures .......................... 3,411
Other liabilities .......................................... 6,333
TOTAL LIABILITIES .......................................... 145,134
EQUITY CAPITAL
Common stock ............................................... 620
Surplus .................................................... 4,611
Undivided profits and capital reserves ..................... 2,890
Net unrealized holding gains (Losses)
on available-for-sale securities ........................... (156)
Cumulative foreign currency translation adjustments ........ 8
TOTAL EQUITY CAPITAL ....................................... 7,973
______
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL .......................... $153,107
==========
I, Joseph L. Sclafani, S.V.P. & Controller of the
above-named bank, do hereby declare that this Report of
Condition has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true to the best of my knowledge and
belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
WILLIAM B. HARRISON )
FREEPORT-McMoRan RESOURCE PARTNERS
REPORTS FOURTH-QUARTER AND YEAR-END 1995 RESULTS
HIGHLIGHTS
- Higher phosphate fertilizer prices result in improved
cash margins yielding a 77% improvement in net income
compared to the year ago quarter.
- Phosphate fertilizer sales volumes reflect strong
export and strengthened domestic demand despite certain
weather-related shipping delays at year-end.
- The significant fertilizer supply agreement reached
with China for 1996 sales leads continued favorable
developments in the international market.
- Diammonium phosphate (DAP) domestic market outlook
continues to be favorable with corn acreage plantings
expected to increase by 13%.
- Animal feed business acquired; positive contribution to
income and cash flow.
- Sulphur production at the Main Pass and Culberson mines
remains strong.
- Recompletion and drilling increase proved oil reserves
and production flow rates at Main Pass.
- Fourth-quarter cash distributions to public unitholders
set at $0.625 per unit exceeding the preference amount.
Fourth Quarter Twelve Months
_______________________ ______________________
1995 1994 1995 1994
___________ ___________ __________ ____________
(In thousands, exept per unit amounts)
_________________________________________________
Revenues............... $264,736 $209,282 $995,112 $765,278
Operating income....... 56,269<F1> 36,333<F2> 194,625<F1> 120,618<F2>
Net income............. 47,315<F1> 26,756<F2> 161,408<F1> 83,966<F2>
Net income per unit.... 0.46<F1> 0.26<F2> 1.56<F1> 0.81<F2>
Average units
outstanding.......... 103,466 103,639 103,487 103,683
<F1> Includes a charge of $2.6 million ($0.02 per unit) and
$15.3 million ($0.15 per unit) for the fourth quarter
and twelve-month period, respectively, for stock option
costs resulting from the rise in FTX's common stock
price during the periods and a $2.8 million charge
($0.03 per unit) for an early retirement program.
<F2> Includes a charge of $3.7 million ($0.04 per unit) and
$10.9 million ($0.11 per unit) for the fourth quarter
and twelve-month period, respectively, for certain
remediation costs and other miscellaneous charges.
<PAGE>
NEW ORLEANS, LA, January 23, 1996 -- Freeport-McMoRan
Resource Partners, Limited Partnership (NYSE:FRP), an
affiliate of Freeport-McMoRan Inc. (NYSE:FTX), reported
fourth-quarter 1995 net income of $47,315,000, $0.46 per
unit, compared with net income of $26,756,000, $0.26 per
unit, a year ago. For the twelve months ended December
31, 1995, FRP reported net income of $161,408,000, $1.56
per unit, compared with net income of $83,966,000, $0.81
per unit, a year ago.
Excluding charges for stock option costs, an early
retirement program and certain remediation costs, net
income for the fourth quarter of 1995 would have been
$52.7 million ($0.51 per unit), a 73% increase from the
fourth quarter of 1994. The following factors contributed
to the difference between the quarterly periods:
Improved Phosphate Fertilizer Prices, Higher Margins.
Average realized phosphate fertilizer prices for the
fourth quarter of 1995 increased approximately 20% from
year ago levels resulting in improved margins. The
improvement was primarily the result of record export
demand and positive developments in domestic markets.
Fertilizer prices continued to rise during the fourth
quarter and are expected to remain firm for the near
term, as the increased global demand for phosphate
fertilizers comes at a time when domestic industrywide
operating rates are above 100% and at record levels.
Domestic phosphate fertilizer producer inventories
remain below normal, despite shipping delays at year
end.
Higher Sales Volumes. FRP's sales of 875,800 tons of
phosphate fertilizer products were higher than year-ago
sales volumes and exceeded expectations due to
continued excellent export demand and strong domestic
sales. Sales volumes would have been greater except
certain weather-related shipping delays at year-end
deferred the sale of approximately 40,000 tons of DAP
into the first quarter of 1996. Because domestic
season-ending stocks of corn and wheat are projected to
be at their lowest level in 20 years, domestic demand
should benefit this spring with an expected 13 percent
increase in planted corn acreage. Leading continued
favorable development in the international market,
FRP's IMC-Agrico Company affiliate reached an agreement
with China providing for monthly shipments of DAP at
market-related prices at the time of shipment
throughout 1996.
Animal Feed Business Acquired. During the fourth
quarter, IMC-Agrico completed the acquisition of
Mallinckrodt Inc.'s animal feed business which
contributed to income and cash flow for the quarter.
Higher Rock Prices, Lower Volumes. Phosphate rock
prices were higher while volumes were lower in the
fourth quarter of 1995 compared to earlier periods due
to the expiration of a substantial sales contract which
was priced on a cost-plus formula. As a result, the
fourth quarter average rock sales price increased
approximately 20% and net income was not significantly
affected.
Higher Sulphur Production. Sulphur production and
operations at FRP's Main Pass and Culberson mines
performed strongly during the quarter and unit cash
production costs remained lower than previously
estimated, reflecting operating efficiencies achieved
earlier in 1995. Since FRP acquired the Culberson mine
in January 1995, production has been maintained at
levels 25% higher than in the fourth quarter of 1994.
Higher Oil Production. Oil production at Main Pass
averaged 11,900 barrels per day for the fourth quarter,
higher than previously expected because of the
recompletion and drilling of several wells that
resulted in substantial flow from the G-Sand zone. As
a result, proved oil reserves were increased by
approximately 4.9 million barrels (1.7 million barrels,
net to FRP). Oil production in 1996 is expected to
approximate 1995 levels. On an annual basis, price
realization in 1995 was $2.08 per barrel higher than in
1994.
DISTRIBUTABLE CASH
Distributable cash for the fourth quarter was sufficient
to provide for a distribution of $0.625 per public unit,
or $31.3 million, and $0.6735 per general partnership unit
owned by FTX, or $35.9 million. FTX's total unpaid cash
distributions were reduced by $2.6 million to $379.9
million, which FTX will be entitled to receive in the
future from a portion of the quarterly distributable cash
after payments of $0.60 per unit to all unitholders. The
fourth-quarter FRP distributable cash calculation included
$64.3 million attributable to IMC-Agrico joint venture
operating activities.
FRP is engaged in the production and sale of phosphate
fertilizers and animal feed ingredients as well as the
mining and sale of phosphate rock through IMC-Agrico
Company; the mining, purchase, transportation,
terminalling and marketing of sulphur, and the production
of related oil reserves.
FRP has eliminated the practice of printing and mailing
glossy quarterly reports. In lieu of that, a copy of this
press release is available by calling 1-800-469-1254.
<PAGE>
FREEPORT-McMoRan RESOURCE PARTNERS, LIMITED PARTNERSHIP
OPERATING HIGHLIGHTS
Fourth Quarter Twelve Months
___________________ ___________________
1995 1994 1995 1994
___________ _________ __________ _________
Phosphate fertilizers -
primarily diammonium
phosphate (DAP)
Sales (short tons)<F1> . . . 875,800 824,500 3,427,700 3,193,400
Average realized price<F2>
All phosphate
fertilizers. . . . . . . . $180.44 $151.23 $169.07 $144.13
DAP . . . . . . . . . . . 189.08 156.48 175.11 149.32
Phosphate rock
Sales (short tons)<F1> . . . . 858,700 1,300,300 4,470,400 4,373,400
Average realized price<F2> . . $25.04 $20.87 $22.53 $21.38
Sulphur
Sales (long tons)<F3>. . . 765,100 501,300 3,049,700 2,087,800
Oil
Sales (barrels). . . . . . 531,200 680,700 2,217,600 2,533,700
Average realized price . . $15.68 $14.82 $15.82 $13.74
<F1> Reflects FRP's 45.1 percent and 46.5 percent share of IMC-Agrico assets
for the years ended June 30, 1995 and 1994, respectively, while FRP
received 55 percent and 58.6 percent of the cash flow generated during
such periods. FRP's share of IMC-Agrico assets for the year ended June
30, 1996 is 43.6 percent, while it will receive 53.1 percent of the cash
flow.
<F2> Represents average realization f.o.b. plant/mine.
<F3> Includes internal consumption totalling 198,700 tons and 175,400 tons
for the fourth quarter of 1995 and 1994, respectively, and 754,400 tons
and 739,900 tons for the twelve-month period of 1995 and 1994,
respectively.
<PAGE>
FREEPORT-McMoRan RESOURCE PARTNERS, LIMITED PARTNERSHIP
STATEMENTS OF INCOME (Unaudited)
Three Months Ended Years Ended
December 31, December 31,
______________________ _____________________
1995 1994 1995 1994
___________ ___________ __________ _________
(In Thousands, Except Per Unit Amounts)
Revenues . . . . . . . . . . $264,736 $209,282 $ 995,112 $ 765,278
Cost of sales:
Production and delivery . . . 178,407 143,810<F1> 687,541 547,297<F1>
Depreciation and
amortization<F2> . . . . . . 13,385 18,368 44,830 52,344
___________ __________ ___________ __________
Total cost of sales . . . 191,792 162,178 732,371 599,641
General and administrative
expenses . . . . . . . . . 16,675<F3> 10,771 68,116<F3> 45,019
___________ __________ ___________ __________
Total costs and expenses . 208,467 172,949 800,487 644,660
___________ __________ ___________ __________
Operating income . . . . . . 56,269 36,333 194,625 120,618
Interest expense, net . . . . (8,057) (9,410) (31,518) (33,519)
Other income (expense), net . (897) (167) (1,699) (3,133)
Net income . . . . . . . . . $ 47,315 $ 26,758 $161,408 $ 83,966
========== =========== =========== ==========
Net income per unit . . . . . $.46 $.26 $1.56 $.81
===== ===== ===== ====
Average units outstanding . . 103,466 103,639 103,487 103,683
========== =========== =========== ==========
Distributions paid per
publicly held unit . . . . $.60 $.60 $2.415 $2.40
===== ===== ====== ======
<F1> Includes a charge of $3.7 million ($0.04 per unit) and $10.9 million
($0.11 per unit) for the fourth quarter and twelve-month period
of 1994, respectively, for certain remediation costs and other
miscellaneous charges.
<F2> Includes a reduction of $4.2 million and $0.9 million for the fourth
quarter of 1995 and 1994, respectively, and $26.3 million and $15.8
million for the twelve-month period of 1995 and 1994, respectively,
caused by FRP's disproportionate interest in IMC-Agrico cash
distributions.
<F3> Includes a charge of $2.6 million ($0.02 per unit) and $15.3 million
($0.15 per unit) for the fourth quarter and twelve-month period of 1995,
respectively, for stock option costs resulting from the rise in FTX's
common stock price during the periods and a $2.8 million charge ($0.03
per unit) for an early retirement program.
<PAGE>
FREEPORT-McMoRan RESOURCE PARTNERS, LIMITED PARTNERSHIP
CONDENSED BALANCE SHEETS (Unaudited)
December 31,
____________________
1995 1994
__________ _________
(In Thousands)
ASSETS
Current assets:
Cash and short-term investments . . . . . . . . . . $ 22,508 $ 9,859
Accounts receivable . . . . . . . . . . . . . . . . 81,101 58,265
Inventories . . . . . . . . . . . . . . . . . . . . 119,010 109,677
Prepaid expenses and other . . . . . . . . . . . . 3,692 1,350
____________ ___________
Total current assets . . . . . . . . . . . . . . 226,311 179,151
Property, plant and equipment, net . . . . . . . . 949,131 910,469
Other assets . . . . . . . . . . . . . . . . . . . 53,663 57,311
____________ ___________
Total assets . . . . . . . . . . . . . . . . . . . $1,229,105 $1,146,931
============= ==========
LIABILITIES AND PARTNERS' CAPITAL
Accounts payable and accrued liabilities . . . . . $ 127,020 $ 84,888
Long-term debt, less current portion . . . . . . . 384,241 368,637
Reclamation and mine shutdown reserves . . . . . . 112,788 96,445
Accrued postretirement benefits and other
liabilities . . . . . . . . . . . . . . . . . . . 200,590 149,301
Partners' capital . . . . . . . . . . . . . . . . . 404,466 447,660
____________ __________
Total liabilities and partners' capital . . . . . . $1,229,105 $1,146,931
============ ==========
<PAGE>
FREEPORT-McMoRan RESOURCE PARTNERS, LIMITED PARTNERSHIP
STATEMENTS OF CASH FLOW (Unaudited)
Years Ended December 31,
_________________________
1995 1994
_____________ ____________
(In Thousands)
Cash flow from operating activities:
Net income . . . . . . . . . . . . . . . . . . . $ 161,408 $ 83,966
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization . . . . . . . . 44,830 52,344
Cash distribution from IMC-Agrico in excess of
interest in capital . . . . . . . . . . . . . 40,835 43,293
Reclamation and mine shutdown expenditures . . (10,545) (9,827)
(Increase) decrease in working capital, net of
effect of acquisitions:
Accounts receivable . . . . . . . . . . . . (13,252) 3,531
Inventories . . . . . . . . . . . . . . . . 4,471 20,522
Prepaid expenses and other . . . . . . . . (2,413) 679
Accounts payable and accrued liabilities . 39,630 14,688
Other . . . . . . . . . . . . . . . . . . . . 19,980 12,244
_____________ ____________
Net cash provided by operating activities . . . . 284,944 221,430
_____________ ____________
Cash flow from investing activities:
Capital expenditures . . . . . . . . . . . . . . (39,485) (29,681)
Mallinckrodt purchase . . . . . . . . . . . . . . (46,200) ---
Sale of assets . . . . . . . . . . . . . . . . . 375 44,774
Other . . . . . . . . . . . . . . . . . . . . . . 1,531 530
_____________ ____________
Net cash provided by (used in) investing
activities. . . . . . . . . . . . . . . . . . . (83,779) 15,623
_____________ ____________
Cash flow from financing activities:
Distributions to partners . . . . . . . . . . . . (202,541) (127,368)
Proceeds from debt . . . . . . . . . . . . . . . 2,137,343 89,629
Repayment of debt . . . . . . . . . . . . . . . . (2,121,257) (358,686)
Purchase of Partnership units . . . . . . . . . . (2,061) (1,342)
Proceeds from sale of 8-3/4% Senior subordinated
notes. . . . . . . . . . . . . . . . . . . . . . --- 146,125
_____________ ____________
Net cash used in financing activities . . . . . . (188,516) (251,642)
_____________ ____________
Net increase (decrease) in cash and short-term
investments. . . . . . . . . . . . . . . . . . . 12,649 (14,589)
Cash and short-term investments at beginning of
year. . . . . . . . . . . . . . . . . . . . . . 9,859 24,448
_____________ ____________
Cash and short-term investments at end of year . $ 22,508 $ 9,859
============= ============
Report of Ernst & Young LLP
We have audited the balance sheets of IMC-Agrico Company (a Partnership) as of
December 31, 1994 and 1993, and June 30, 1994 and the related statements of
earnings, changes in partners' capital and cash flows for the six-month
periods ended December 31, 1994 and 1993, and the year ended June 30, 1994
(not presented separately herein). These financial statements are the
responsiblity of IMC-Agrico Company's management. Our responsiblity is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are
free of material mistatement. An audit includes examining, on a test
basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles
used and signficant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that our audits
provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of IMC-Agrico Company as
of December 31, 1994 and 1993, and June 30, 1994, and the results of its
operations and its cash flows for the six-month periods ended December 31,
1994 and 1993, and the year ended June 30, 1994 in accordance with
generally accepted accounting principles.
ERNST & YOUNG LLP
Chicago, Illinois
January 16, 1995
