As filed with the Securities and Exchange Commission on April 19, 1996.
Registration No. 333-_____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FREEPORT MCMORAN COPPER & GOLD INC.
FCX FINANCE COMPANY B.V.
(Exact name of each registrant as specified in its charter)
Delaware 1615 Poydras Street 74-2480931
The Netherlands New Orleans, Louisiana 70112 Not Applicable
(State or other (504) 582-4000 (I.R.S. Employer
jurisdiction of (Address, including zip code, Identification
incorporation or and telephone number, including Nos.)
organization) area code, of the Registrants'
principal executive offices)
Henry A. Miller, Esq.
Freeport-McMoRan Copper & Gold Inc.
Vice President and General Counsel
1615 Poydras Street
New Orleans, Louisiana 70112
(504) 582-4000
(Name, address, including zip code, and telephone number,
including area code, of agent for service of each Registrant)
Copies to:
William B. Masters, Esq.
Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, L.L.P.
201 St. Charles Avenue
New Orleans, Louisiana 70170
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement becomes effective.
If the only securities being
registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, check the
following box. __
If any of the securities being
registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans,
check the following box. X
If this Form is filed to register
additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the
following box and list the Securities Act registration
statement number of the earlier effective registration
statement for the same offering. __
If this Form is a post-effective
amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the
Securities Act registration statement number of the
earlier effective registration statement for the same
offering. __
If delivery of the prospectus is
expected to be made pursuant to Rule 434, please check the
following box. X
______________________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
_______________________________________________________________________________________________________
Proposed Proposed
maximum maximum Amount of
Title of each class of Amount to be offering aggregate registration
securities to be registered registered<F1> price offering fee
per price<F3>
unit<F2><F3>
=======================================================================================================
<S> <C> <C> <C> <C>
Debt Securities<F4> $750,000,000 100% $750,000,000 $258,621
Preferred Stock, par value $0.10 per
share<F5> -- -- -- --
Guarantees<F6> -- -- -- --
Warrants<F7> -- -- -- --
Depositary Shares<F8> -- -- -- --
========================================================================================================
(facing sheet continued on following page)
<FN>
<F1> In U.S. dollars or the equivalent thereof in one or
more foreign currencies or currency units or composite
currencies, including the European Currency Unit.
<F2> The proposed maximum initial offering price per unit
will be determined, from time to time, by the
Registrants.
<F3> Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457. No separate
consideration will be received for Preferred Stock or
Depositary Shares that are issued upon conversion of
Debt Securities or Preferred Stock or the exercise of
the Warrants registered hereby.
<F4> Subject to Footnote (3), there are being registered
hereunder an indeterminate principal amount of Debt
Securities as may be sold from time to time by each of
the Registrants. If any such Debt Securities are
issued at an original issue discount, then the
principal amount shall be in such greater amount as
shall result in an aggregate initial offering price of
up to $750,000,000.
<F5> Subject to Footnote (3), there are being registered
hereunder an indeterminate number of shares of
Preferred Stock as may be sold from time to time by
Freeport-McMoRan Copper & Gold Inc. There are also
being registered hereunder an indeterminate number of
shares of Preferred Stock as may be issuable upon the
conversion of the Debt Securities or Preferred Stock
or the exercise of the Warrants registered hereby.
<F6> Each of the Debt Securities issued by FCX Finance
Company B.V. will be accompanied by a Guarantee to be
issued by Freeport-McMoRan Copper & Gold Inc. None of
the proceeds from the sale of such Debt Securities
will be received by Freeport-McMoRan Copper & Gold
Inc. for the Guarantees. No separate registration fee
is required for the Guarantees in accordance with Rule
457(n).
<F7> Subject to Footnote (3), there are also being
registered hereunder an indeterminate number of
Warrants as may be sold from time to time by Freeport-
McMoRan Cooper & Gold Inc. There are also being
registered hereunder an indeterminate number of shares
of Preferred Stock and Debt Securities as may be
issuable upon the exercise of the Warrants registered
hereby.
<F8> Subject to Footnote (3), there are being registered
such indeterminate number of Depositary Shares to be
evidenced by Depositary Receipts issued pursuant to a
Deposit Agreement. In the event Freeport-McMoRan
Copper & Gold Inc. elects to offer fractional
interests in shares of Preferred Stock registered
hereunder, the Depositary Receipts will be distributed
to those persons acquiring such fractional interests
and the shares of Preferred Stock will be issued to
the Depositary under the Deposit Agreement.
</FN>
</TABLE>
____________________
The Registrants hereby amend this registration
statement on such date or dates as may be necessary to
delay its effective date until the Registrants shall file
a further amendment which specifically states that this
Registration Statement will thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933
or until the registration statement shall become effective
on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
The information contained herein is subject to completion or amendment.
A Registration Statement relating to the securities has been filed with
the Securities and Exchange Commission. These securities may not be sold
nor may offers to buy be accepted prior to the time the Registration Statement
becomes effective. This Prospectus shall not constitute an offer to sell
or the solicitation of an offer to buy nor shall there be any sale of these
securities in any state in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such state.
<PAGE>
SUBJECT TO COMPLETION, dated April 19, 1996
PROSPECTUS
$750,000,000
Freeport-McMoRan Copper & Gold Inc.
Debt Securities
Guarantees
Preferred Stock
Warrants
FCX Finance Company B.V.
Guaranteed Debt Securities
Freeport-McMoRan Copper & Gold Inc. (the "Company" or "FCX")
may offer and issue from time to time, together or separately, in one
or more series (i) Debt Securities, which may be either senior debt
securities ("Senior Securities"), senior subordinated debt securities
("Senior Subordinated Securities") or subordinated debt securities
("Subordinated Securities"), consisting of debentures, notes, bonds
and/or other unsecured evidences of indebtedness, (ii) unconditional
and irrevocable guarantees ("Guarantees") of Debt Securities issued
by FCX Finance Company B.V. ("FCX Finance"), a wholly-owned
subsidiary of FCX, (iii) shares of the Company's Preferred Stock, par
value $0.10 per share ("Preferred Stock"), and (iv) Warrants
("Warrants") to purchase Debt Securities or Preferred Stock. FCX
Finance may offer and issue from time to time Senior Securities,
Senior Subordinated Securities and Subordinated Securities
guaranteed, in each case, as to principal, interest, premium, if any,
and additional amounts, if any, by FCX, consisting of debentures,
notes, bonds and/or other unsecured evidences of indebtedness in one
or more series (the "Guaranteed Debt Securities" and together with
the Debt Securities that may be issued by FCX, the "Debt
Securities"). The foregoing securities are collectively referred to
as the "Securities." The Securities will be offered at an aggregate
initial offering price not to exceed U.S. $750,000,000 (or its
equivalent (based on the applicable exchange rate at the time of
sale) in one or more foreign currencies, currency units or composite
currencies as shall be designated by FCX or FCX Finance, as the case
may be) at prices and on terms to be determined at the time of sale.
The accompanying Prospectus Supplement sets forth with regard to
the particular Securities in respect of which this Prospectus is
being delivered: (i) in the case of Debt Securities, the title,
aggregate principal amount, denominations (which may be in United
States dollars or in any other currency, currencies or currency unit,
including the European Currency Unit), maturity, interest rate, if
any (which may be fixed or variable), or method of calculation
thereof, and time of payment of any interest, premium and additional
amounts, if any, any terms for redemption at the option of the
Company (or, in the case of Guaranteed Debt Securities issued by FCX
Finance, at the option of FCX Finance) or the holder, any terms for
sinking fund payments, any conversion or exchange rights, any listing
on a securities exchange and the initial public offering price and
any other terms in connection with the offering and sale of such Debt
Securities; (ii) in the case of Preferred Stock, the designation,
aggregate principal amount, stated value and liquidation preference
per share, initial public offering price, dividend rate (or method of
calculation), dates on which dividends shall be payable and dates
from which dividends shall accrue, any redemption or sinking fund
provisions, conversion or exchange rights, whether the Company has
elected to offer the Preferred Stock in the form of depositary
shares, any listing of the Preferred Stock on a securities exchange
and any other terms in connection with the offering and sale of such
Preferred Stock; and (iii) in the case of Warrants, the number and
terms thereof, the designation and the number of Securities issuable
upon their exercise, the exercise price, any listing of the Warrants
or the underlying Securities on a securities exchange and any other
terms in connection with the offering, sale and exercise of the
Warrants. The Prospectus Supplement will also contain information,
as applicable, about certain United States federal income tax
considerations relating to the Securities in respect of which this
Prospectus is being delivered.
The Senior Securities of FCX and FCX Finance will rank equally
with all other unsubordinated and unsecured indebtedness of the
Company. The Senior Subordinated Securities of FCX and FCX Finance
will be subordinated to all existing and future Senior Indebtedness
(as defined) of the Company, and senior to all existing and future
Subordinated Indebtedness (as defined) of the Company. The
Subordinated Securities of FCX and FCX Finance will be subordinated
to all existing and future Senior Indebtedness and Senior
Subordinated Indebtedness of the Company. All or a portion of any
Debt Securities may be issued in permanent global form.
The Company and FCX Finance may sell Securities to or through one
or more underwriters, dealers or agents or to other purchasers. The
accompanying Prospectus Supplement sets forth the names of any
underwriters, dealers or agents involved in the sale of the
Securities in respect of which this Prospectus is being delivered,
the principal amounts, if any, to be purchased by any underwriters,
dealers or sold through any agents and the compensation, if any, of
such underwriters or agents. See "Plan of Distribution."
This Prospectus may not be used to consummate sales of Securities
unless accompanied by a Prospectus Supplement.
PROSPECTIVE PURCHASERS OF SECURITIES SHOULD CAREFULLY CONSIDER THE
MATTERS SET FORTH UNDER THE CAPTION "RISK FACTORS" BEGINNING ON PAGE
5.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
, 1996
No dealer, salesperson or other person has been authorized to
give any information or to make any representations not contained or
incorporated by reference in this Prospectus or in the Prospectus
Supplement, and, if given or made, such information or
representations must not be relied upon as having been authorized by
FCX, FCX Finance or any underwriter, agent or dealer. This
Prospectus and the accompanying Prospectus Supplement do not
constitute an offer to sell or a solicitation of an offer to buy any
Securities other than the Securities to which they relate or an offer
to sell, or a solicitation of an offer to buy, to any person in any
jurisdiction where such an offer to or solicitation would be
unlawful. Neither the delivery of this Prospectus nor the
accompanying Prospectus Supplement, nor any sale made thereunder
shall, under any circumstances, create the implication that the
information contained or incorporated by reference herein or therein
is correct as of any time subsequent to their respective dates.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
in accordance therewith files reports, proxy statements and other
information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements and other information
filed with the Commission by the Company can be inspected and copied
at the public reference facilities maintained by the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.,
20549, and at the regional offices of the Commission located at
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois, 60661 and at Seven World Trade Center, 13th Floor, New
York, New York, 10048. Copies of such material can be obtained from
the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C., 20549, at prescribed rates. Such reports,
proxy statements and other information concerning the Company can
also be inspected at the offices of the New York Stock Exchange
("NYSE") at 20 Broad Street, New York, New York, 10005.
FCX Finance is a wholly-owned subsidiary of the Company. It
currently is not independently subject to the information
requirements of the Exchange Act. FCX Finance has applied for a
conditional exemption pursuant to Section 12(h) of the Exchange Act
from the informational requirements of the Exchange Act and
anticipates that no independent reports concerning FCX Finance will
be sent to holders of Guaranteed Debt Securities issued by FCX
Finance.
The Company and FCX Finance have filed a joint registration
statement on Form S-3 (herein, together with all amendments and
exhibits referred to as the "Registration Statement") with the
Commission under the Securities Act of 1933, as amended (the
"Securities Act"), pertaining to the Securities covered by this
Prospectus. This Prospectus, filed as a part of the Registration
Statement, does not contain all the information set forth in the
Registration Statement or the exhibits and schedules thereto, certain
parts of which are omitted in accordance with the rules and
regulations of the Commission, and to which reference is hereby made.
Statements made in this Prospectus as to the contents of any
contract, agreement or other document filed as an exhibit to the
Registration Statement are summaries of the terms of such contracts,
agreements or documents. Reference is made to each such exhibit for
a more complete description of the matters involved, and such
statements shall be deemed qualified in their entirety by such
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995 (File No 1-9916), which has been filed by the
Company with the Commission pursuant to the Exchange Act, is by this
reference incorporated in and made a part of this Prospectus.
All reports and other documents subsequently filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this Prospectus and prior to the termination of the
offering of the Securities shall be deemed to be incorporated by
reference herein and to be part of this Prospectus from their
respective dates of filing. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded to the extent that a statement
contained herein or in any other document subsequently filed which
also is or is deemed to be incorporated by reference herein modifies
or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each
person to whom this Prospectus is delivered, upon a written or oral
request, a copy of any or all of the documents that are incorporated
herein by reference (other than exhibits to such documents, unless
such exhibits are specifically incorporated by reference into such
documents). Requests should be directed to Freeport-McMoRan Copper &
Gold Inc., Attention: Secretary, 1615 Poydras Street, New Orleans,
Louisiana, 70112 (Telephone: (504) 582-4000).
ENFORCEMENT OF CIVIL LIABILITIES
FCX Finance is a private company with limited liability
incorporated in The Kingdom of the Netherlands. Substantially all of
its assets are located outside the United States. FCX Finance has
been advised by its legal counsel in the Netherlands, Wouters
Advocaten, that there is no treaty between the United States and the
Netherlands for the mutual recognition and enforcement of judgments
(other than arbitration awards) in civil and commercial matters.
Therefore, final judgments for the payment of money rendered by any
federal or state court in the United States based on civil liability,
whether or not predicated solely upon the federal securities laws,
would not be directly enforceable in the Netherlands. In order to
enforce in the Netherlands any United States judgment obtained
against FCX Finance, proceedings must be initiated before a court of
competent jurisdiction in the Netherlands. A Netherlands court will,
under current practice, normally issue a judgment based upon the
judgment rendered by the United States court if it finds that (i) the
United States court had jurisdiction over the original proceedings,
(ii) the judgment was obtained in compliance with principles of due
process, (iii) the judgment is final and conclusive such that all
appeals have been exhausted and (iv) the judgment does not contravene
the public policy or public order of the Netherlands. Based on the
foregoing, there can be no assurance that the United States investors
will be able to enforce against FCX Finance, certain members of the
Board of Directors of FCX Finance or certain experts named herein who
are residents of the Netherlands or countries other than the United
States any judgment in civil and commercial matters, including
judgments under the federal securities laws. FCX Finance has been
advised by such counsel that, under certain circumstances, a
Netherlands court might impose civil liability on FCX Finance or on
members of the Board of Directors of FCX Finance in an original
action predicated solely upon the federal securities laws of the
United States brought in a court of competent jurisdiction in the
Netherlands against the Issuer or such members.
FCX, the guarantor of any Guaranteed Debt Securities, is a
Delaware corporation with its principal executive offices in the
United States. Accordingly, process may be served and judgments
enforced against FCX in the United States, including judgments
predicated upon the civil liabilities provisions of the federal
securities laws of the United States.
THE COMPANY
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation ("FCX"
or the "Company"), is one of the world's largest copper and gold
companies in terms of reserves and production, and believes that it
has one of the lowest cost copper producing operations in the world,
taking into account customary credits for related gold and silver
production.
FCX's principal operating subsidiary is P.T. Freeport Indonesia
Company, a limited liability company organized under the laws of the
Republic of Indonesia and domesticated in Delaware ("PT-FI"). PT-FI
engages in the exploration for and development, mining and processing
of copper, gold and silver in Irian Jaya, Indonesia pursuant to an
agreement (a "COW" or "Contract of Work") with the Government of the
Republic of Indonesia (the "Indonesian Government") and in the
worldwide marketing of concentrates containing such metals. PT-FI's
largest mine, Grasberg, was discovered in 1988 and contains the
largest single gold reserve and one of the three largest open-pit
copper reserves in the world.
Through P.T. IRJA Eastern Minerals Corporation ("Eastern Mining"),
FCX holds an additional COW in Irian Jaya. Eastern Mining was formed
in 1994 for the purpose of acquiring, holding and developing the
Eastern Mining COW.
FCX is also engaged in the smelting and refining of copper
concentrates in Spain through its indirect, wholly-owned subsidiary,
Rio Tinto Minera, S.A.
The Company's principal executive offices are located at 1615
Poydras Street, New Orleans, Louisiana, 70112 and its telephone
number is (504) 582-4000.
FCX FINANCE
FCX Finance Company B.V. ("FCX Finance") is a wholly-owned
subsidiary of FCX organized as a private company with limited
liability under the laws of the Netherlands on March 4, 1996. FCX
Finance was established for the purpose of issuing the Guaranteed
Debt Securities and other debt securities guaranteed by FCX and
lending the net proceeds thereof to FCX and its other subsidiaries.
FCX Finance will be restricted from issuing any capital stock to any
person other than FCX and its wholly-owned subsidiaries. FCX Finance
will not lease or own any material facilities or other property or
engage in any other material operations. FCX Finance's principal
office is c/o ABN AMRO Trust Company (Nederland) B.V. Coolsingel
139,3000 DG, Rotterdam, The Netherlands, and its telephone number of
011-31-10-402-4323.
RISK FACTORS
An investment in any Securities involves certain risks.
Accordingly, prospective investors should consider carefully the
following factors, in addition to the other information concerning
the Company and its business contained in this Prospectus, and any
accompanying Prospectus Supplement, before purchasing any of the
Securities offered hereby.
Prices of Minerals
Because FCX's revenues are derived primarily from the sale of
concentrates containing copper and gold, FCX's earnings are directly
related to market prices for copper and gold. Prices for such
minerals historically have fluctuated widely and are affected by
numerous factors beyond FCX's control.
Location and Industry Risks
PT-FI's mining operations are located in steeply mountainous
terrain in a very remote area of Indonesia, which makes the conduct
of its operations difficult and has required PT-FI to overcome
special engineering difficulties and develop extensive infrastructure
facilities. The area is subject to considerable rainfall, which has
led to periodic floods and mud slides. The mine site is also in an
active seismic area, and earth tremors have been experienced from
time to time. None of these factors has caused personal injury to
PT-FI employees or significant property damage not covered by
insurance or any significant interruptions to production, although no
assurance can be given that delays, injury or damage will not occur
in the future. PT-FI also is subject to the usual risks encountered
in the mining industry, including unexpected geological conditions
resulting in cave-ins, floodings and rock-bursts and unexpected
changes in rock stability conditions. PT-FI has substantial
insurance involving such amounts and types of coverage as it believes
are appropriate for its exploration, development, mining and
processing activities in Indonesia.
Political Factors
Maintaining a good relationship with the Indonesian Government is
of particular importance to the Company because its principal
operations are located in Indonesia. PT-FI's mining complex was
Indonesia's first copper mining project and was the first major
foreign investment in Indonesia following the economic development
program instituted by the Suharto administration in 1967. PT-FI works
closely with the central, provincial and local governments in
development efforts in the vicinity of its operations. The Company
operates in Indonesia through PT-FI by virtue of the PT-FI COW and
through Eastern Mining by virtue of the Eastern Mining COW, both of
which have 30-year terms, provide for two 10-year extensions under
certain conditions, and govern PT-FI's and Eastern Mining's rights
and obligations relating to taxes, exchange controls, repatriation
and other matters. Both COWs were concluded pursuant to the 1967
Foreign Capital Investment Law, which expresses Indonesia's foreign
investment policy and provides basic guarantees of remittance rights
and protection against nationalization, a framework for economic
incentives and basic rules regarding other rights and obligations of
foreign investors.
PT-FI's mining operations are located in the Indonesian province
of Irian Jaya, which occupies the western half of the island of New
Guinea and became part of Indonesia during the early 1960s. The area
surrounding PT-FI's mining development is sparsely populated by
primitive indigenous tribes and former residents of more populous
areas of Indonesia, some of whom have resettled in Irian Jaya under
the Indonesian Government's transmigration program. Certain members
of the indigenous population oppose Indonesian rule over Irian Jaya,
and several small separatist groups seek political independence for
the province. Sporadic attacks on civilians by the separatists and
sporadic but highly publicized conflicts between separatists and the
Indonesian military have led to allegations of human rights
violations. PT-FI personnel have not been involved in those
conflicts. The Indonesian military occasionally has exercised its
right to appropriate transportation and other equipment of PT-FI.
PT-FI's policy has been to operate in Irian Jaya in compliance
with all Indonesian laws and in a manner that improves the lives of
the indigenous population. PT-FI incurs significant costs associated
with its social and cultural activities. Such activities include
comprehensive job training programs, basic education programs,
extensive malaria control and general public health programs,
agricultural assistance programs, a business incubator program to
encourage the local people to establish their own small scale
businesses, cultural preservation programs, and charitable donations.
Following civil disturbances in the mining town of Tembagapura and
the lowlands town of Timika in early 1996 and as a result of
subsequent meetings with tribal leaders, the Company, in cooperation
with the Indonesian Government, agreed to redistribute and refocus
its community development programs by dedicating 1% of PT-FI's
revenues over the next ten years to fund these efforts and, among
other things, to increase the number of local Irianese in its work
force. The Indonesian Government agreed as part of its development
efforts in Irian Jaya to create an integrated development plan
calling for the participation of the local indigenous tribes in
creating and developing the community development projects funded by
the Company. While management believes that its efforts to be
responsive to the issues relating to the impact of its operations on
the local indigenous tribes should ensure that mining operations will
not be disrupted, social and political instability in the area may,
in the future, have an adverse impact on PT-FI's mining operations.
Reserves
FCX reserve amounts, which are determined in accordance with
established mining industry practices and standards, are estimates
only. PT-FI's mines in production or development may not conform to
geological or other expectations, so that the volume and grade of
reserves recovered and the rates of production may be more or less
than anticipated. Because ore bodies do not contain uniform grades
of minerals, ore recovery rates will vary from time to time,
resulting in variations in volumes of minerals sold from period to
period. Further, market price fluctuations in copper, gold and, to a
lesser extent, silver, and changes in operating and capital costs may
render certain ore reserves uneconomic to develop. No assurance can
be given that FCX's exploration programs will result in the discovery
of commercially exploitable mineral deposits.
Environmental and Government Regulation
The Company's exploration and mining activities in Irian Jaya
involve significant engineering and environmental challenges that
relate primarily to the location of the mine in remote, rugged
highlands and the disposition of tailings through discharge into a
river that deposits them in a controlled deposition area near the
sea. The Company has sought to preserve and protect the environment
in its area of operations.
The Company has expended significant resources, both financial and
managerial, to comply with environmental regulations and permitting
and approval requirements and anticipates that it will continue to do
so in the future. There can be no assurance that additional
significant costs and liabilities will not be incurred to comply with
such current and future regulations.
Holding Company Structure
Because FCX is primarily a holding company, conducting business
through its subsidiaries, its ability to meet its obligations under
the Debt Securities, the Guarantees and its other indebtedness and to
pay dividends on its Preferred Stock and Common Stock will depend on
the earnings and cash flow of its subsidiaries and the ability of its
subsidiaries to pay dividends and to advance funds to the Company.
Under certain circumstances, contractual and legal restrictions, as
well as the financial condition and operating requirements of PT-FI
and the Company's other subsidiaries, could limit the Company's
ability to obtain cash from its subsidiaries for the purpose of
meeting its debt service obligations, including the payment of
principal and interest on any Debt Securities. Any right of the
Company to participate in any distribution of the assets of PT-FI and
its other subsidiaries upon the liquidation, reorganization or
insolvency thereof would, with certain exceptions, be subject to the
claims of creditors (including trade creditors) and preferred
stockholders (if any) of such subsidiaries.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus
Supplement, the net proceeds from the sale of the Securities will be
used for general corporate purposes, including the repayment of
existing indebtedness, capital expenditures and additions to working
capital. The Company anticipates that it and its subsidiaries will
raise additional funds from time to time through equity or debt
financings, including borrowings under its revolving credit
facilities, to finance their businesses.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed
charges and the ratio of earnings to fixed charges, preferred stock
dividends and minimum distributions of the Company and its
consolidated subsidiaries for the periods indicated.
Years Ended December 31, 1991
______________________________
1991 1992 1993 1994 1995
_____ ____ _____ _____ _____
Ratio of earnings to fixed charges 4.5x 6.5x 3.6x 7.5x 6.0x
Ratio of earnings to fixed charges,
preferred stock dividends and minimum
distributions (unaudited) 3.3x 3.5x 1.2x 2.1x 3.0x
For purposes of calculating the ratios, "earnings" consist of
income from continuing operations before income taxes, minority
interest and fixed charges and "fixed charges" consist of interest
and that portion of rent which is deemed representative of interest.
For purposes of calculating the ratio of earnings to fixed charges,
preferred stock dividends and minimum distributions, the preferred
stock dividend requirements were assumed to be equal to the pretax
earnings which would be required to cover such dividend requirements.
The amount of such pretax earnings required to cover preferred stock
dividends was computed using tax rates for the applicable year.
"Minimum distributions" for purposes of calculating this ratio
consist of required minimum distributions for the Company's Class A
Common Stock that expired May 1, 1993.
-3-
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
Debt Securities may be issued from time to time in one or more
series by FCX or by FCX Finance. In the event that any series of
Guaranteed Debt Securities is issued by FCX Finance, such Guaranteed
Debt Securities will be offered together with unconditional and
irrevocable guarantees issued by FCX (the "Guarantees"). In the
following description, references to the Issuer refer to FCX, in the
case of a series of Debt Securities issued by FCX, and to FCX and FCX
Finance, in the case of a series of Debt Securities issued by FCX
Finance.
The Debt Securities will constitute either indebtedness designated
as Senior Indebtedness ("Senior Securities"), indebtedness designated
as Senior Subordinated Indebtedness ("Senior Subordinated
Securities") or indebtedness designated as Subordinated Indebtedness
("Subordinated Securities"). The particular terms of each series of
Securities offered by a particular Prospectus Supplement and, if such
Debt Securities are offered by FCX Finance, the particular terms of
the Guarantees offered in connection therewith, will be described in
such Prospectus Supplement or Prospectus Supplements relating to such
series. Senior Securities, Senior Subordinated Securities and
Subordinated Securities will each be issued under separate indentures
(individually an "Indenture" and collectively the "Indentures") to be
entered into prior to the issuance of such Debt Securities, forms of
which Indentures are filed as exhibits to this Registration
Statement. The Indentures will be substantially identical, except
for provisions relating to subordination and the Guarantees.
Information regarding the Trustee under an Indenture will be included
in any Prospectus Supplement relating to the Debt Securities issued
thereunder. The following discussion includes a summary description
of all material terms of the Indentures, other than terms which are
specific to a particular series of Debt Securities and which will be
described in the Prospectus Supplement relating to such series. The
following summaries do not purport to be complete and are subject to,
and are qualified in their entirety by reference to, all of the
provisions of the Indentures, including the definitions therein of
certain terms capitalized in this Prospectus. Wherever particular
Sections or Articles or defined terms of the Indentures are referred
to herein or in a Prospectus Supplement, such Sections or defined
terms are incorporated herein or therein by reference.
Other than to the extent applicable to the Debt Securities of a
particular series, as indicated in the applicable Prospectus
Supplement, there are no provisions of the Indentures that limit the
amount of indebtedness that may be issued or incurred by the Issuer
or any subsidiary, that restrict the Issuer's or any subsidiary's
ability to incur secured indebtedness, that restrict FCX's ability to
pay dividends or make other distributions, nor do the Indentures
contain provisions that would afford holders of the Debt Securities
protection in the event of a change in control, highly leveraged
transaction, recapitalization or similar transaction involving FCX,
any of which could adversely affect the holders of the Debt
Securities.
General
The Indentures do not limit the aggregate amount of Debt
Securities which may be issued thereunder, and Debt Securities may be
issued thereunder from time to time in separate series up to the
aggregate amount from time to time authorized by the Issuer for each
series. Debt Securities of a series may be issued in registered form
without coupons ("Registered Debt Securities"), in bearer form with
or without coupons attached ("Bearer Debt Securities") or in the form
of one or more Global Securities in registered or bearer form (each,
a "Global Security"). Bearer Debt Securities, if any, will be
offered only to non-United States persons and to offices located
outside the United States of certain United States financial
institutions. The Senior Securities will be unsecured and
unsubordinated obligations of the Issuer and will rank equally and
ratably with all other unsecured and unsubordinated indebtedness of
the Issuer. The Senior Subordinated Securities and the Subordinated
Securities will be subordinated in right of payment to the prior
payment in full of the Senior Indebtedness (as defined) of the
Issuer, as described below under "Subordination of Senior
Subordinated Securities, Subordinated Securities and Guarantees" and
in a Prospectus Supplement applicable to an offering of Senior
Subordinated Securities or Subordinated Securities.
Any Debt Security issued by FCX Finance will be unconditionally
and irrevocably guaranteed by FCX as to payment of principal, premium
and additional amounts, if any, and interest.
The applicable Prospectus Supplement or Prospectus Supplements
will describe the following terms of the series of Debt Securities in
respect of which this Prospectus is being delivered: (a) the Issuer
(which may be either the Company or FCX Finance) and title of such
Debt Securities; (b) any limit on the aggregate principal amount of
such Debt Securities; (c) whether such Debt Securities will be issued
as Registered Debt Securities, Bearer Debt Securities or any
combination thereof, and any limitation on issuance of such Bearer
Debt Securities and any provisions regarding the transfer or exchange
of such Bearer Debt Securities, including exchange for Registered
Debt Securities of the same series; (d) whether any of such Debt
Securities are to be issuable as a Global Security, whether such
Global Securities are to be issued in temporary global form or
permanent global form, and, if so, the terms and conditions, if any,
upon which interests in such Securities in global form may be
exchanged, in whole or in part, for the individual Debt Securities
represented thereby; (e) the person to whom any interest on any Debt
Security of the series shall be payable if other than the person in
whose name the Debt Security is registered on the record date; (f)
the date or dates on which such Debt Securities will mature; (g) the
rate or rates of interest, if any, or the method of calculation
thereof, which such Debt Securities will bear; (h) the date or dates
from which any such interest will accrue, the interest payment dates
on which any such interest on such Debt Securities will be payable
and the record date for any interest payable on any interest payment
date; (i) the place or places where the principal of, interest,
premium and additional amounts (if any) on such Debt Securities will
be payable; (j) the period or periods within which, the events upon
the occurrence of which, and the price or prices at which, such Debt
Securities may, pursuant to any optional or mandatory provisions, be
redeemed or purchased, in whole or in part, by the Issuer and any
terms and conditions relevant thereto; (k) the power or obligation of
the Issuer, if any, to redeem or repurchase such Debt Securities; (l)
the denominations in which any such Debt Securities will be issuable,
if other than denominations of $1,000 and any integral multiple
thereof; (m) the currency, currencies or currency unit or units of
payment of principal of and any premium, additional amounts (if any)
and interest on such Debt Securities if other than U.S. dollars; (n)
any index or formula used to determine the amount of payments of
principal of and any premium, additional amounts and interest on such
Debt Securities; (o) if the principal of or any premium or interest
on such Debt Securities is to be payable, at the election of the
Issuer or a Holder thereof, in one or more currencies or currency
units other than that or those in which such Debt Securities are
stated to be payable, the currency, currencies or currency units in
which payment of the principal of and any premium and interest on
Debt Securities of such series as to which such election is made
shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made; (p) if other than
the principal amount thereof, the portion of the principal amount of
such Debt Securities of the series which will be payable upon
declaration of the acceleration of the maturity thereof; (q) the
applicability of any provisions described under "Certain Covenants of
the Issuer" and any additional restrictive covenants (including any
defined terms relating thereto) included for the benefit of the
holders of such Debt Securities; (r) the applicability of, deletions
from, modifications of or additions to any provisions described under
"Events of Default" (including any defined terms relating thereto)
and any additional Events of Default with respect to the Debt
Securities; (s) the applicability of any provisions described under
"Defeasance"; and (t) any other terms of such Debt Securities not
inconsistent with the provisions of the respective Indentures.
Debt Securities may be issued at a discount from their principal
amount. Any United States federal income tax considerations and
other special considerations applicable to any such Original Issue
Discount Securities will be described in the applicable Prospectus
Supplement.
If the purchase price of any of the Debt Securities is denominated
in a foreign currency or currencies or a foreign currency unit or
units or if the principal of and any premium and interest on any
series of Debt Securities is payable in a foreign currency or
currencies or a foreign currency unit or units, the restrictions,
elections, general tax considerations, specific terms and other
information with respect to such issue of Debt Securities and such
foreign currency or currencies or foreign currency unit or units will
be set forth in the applicable Prospectus Supplement.
Debt Securities may be presented for exchange and registered Debt
Securities may be presented for transfer in the manner, at the places
and subject to the restrictions set forth in the Debt Securities and
the applicable Indenture. Such services will be provided without
charge, other than any tax or other governmental charge payable in
connection therewith, but subject to the limitations provided in the
applicable Indenture. Bearer Debt Securities and the coupons, if
any, appertaining thereto will be transferable by delivery.
Unless otherwise set forth in the applicable Prospectus
Supplement, Debt Securities may bear interest at a fixed rate or a
floating rate. Debt Securities bearing no interest or interest at a
rate that at the time of issuance is below the prevailing market rate
may be sold at a discount below their stated principal amount.
Special United States federal income tax considerations applicable to
any such discounted Debt Securities or to certain Debt Securities
issued at par which are treated as having been issued at a discount
for United States federal income tax purposes will be described in
the relevant Prospectus Supplement.
Debt Securities may be issued from time to time with payment terms
which are calculated by reference to the value, rate or price of one
or more commodities, currencies or indices. Holders of such Debt
Securities may receive a principal amount (including premium, if any)
on any principal payment date,or a payment of interest on any
interest payment date, that is greater than or less than the amount
of principal (including premium, if any) or interest otherwise
payable on such dates, depending upon the value, rate or price on the
applicable dates of the applicable currency, commodity or index.
Information as to the methods for determining the amount of
principal, premium (if any) or interest payable on any date, the
currencies, commodities or indices to which the amount payable on
such date is linked and certain additional tax considerations will be
set forth in the applicable Prospectus Supplement.
Guarantees
The Company will unconditionally and irrevocably guarantee, on a
senior, senior subordinated or subordinated basis, the due and
punctual payment of principal of, premium and additional amounts, if
any, and interest on any Debt Securities that are issued by FCX
Finance, and the due and punctual payment of any sinking fund
payments thereon, when and as the same shall become due and payable,
whether at the maturity date, by declaration of acceleration, call
for redemption or otherwise. See "Subordination of Senior
Subordinated Securities, Subordinated Securities and Guarantees."
Senior Debt
The Senior Securities will rank pari passu with all other
unsecured and unsubordinated debt of the Issuer and senior to any
Subordinated Debt Securities and Subordinated Securities.
Subordination of Senior Subordinated Securities, Subordinated
Securities and Guarantees
The indebtedness evidenced by the Senior Subordinated Securities
and the Subordinated Securities will be subordinated and junior in
right of payment to the extent set forth in the respective Indenture
to the prior payment in full of amounts then due on all Senior
Indebtedness (as defined below). No payment shall be made by the
Issuer on account of principal of (or premium or additional amounts,
if any) or interest on the Senior Subordinated Securities or the
Subordinated Securities or on account of the purchase or other
acquisition of Senior Subordinated Securities or the Subordinated
Securities, if the maturity of any of the Senior Subordinated
Securities or the Subordinated Securities shall have been
accelerated, until all amounts due have been paid on all outstanding
Senior Indebtedness, or if there shall have occurred and be
continuing (a) a default in the payment of principal (or premium or
additional amounts, if any) or interest on any Senior Indebtedness
beyond any applicable grace period with respect thereto, or any event
of default with respect to any Senior Indebtedness resulting in the
acceleration of the maturity of such Senior Indebtedness, unless and
until such default or event of default shall have been cured or
waived or shall have ceased to exist and such acceleration shall have
been rescinded or annulled or (b) any such default in payment or
event of default shall be the subject of a judicial proceeding. By
reason of these provisions in the event of default of any Senior
Indebtedness, whether now outstanding or hereafter issued, payments
of principal of (and premium, if any) and interest on the Senior
Subordinated Securities or the Subordinated Securities may not be
permitted to be made until such default is cured or such Senior
Indebtedness is paid in full.
Upon any distribution of assets of the Issuer upon any
receivership, dissolution, winding-up, liquidation, reorganization or
similar proceedings of the Issuer, whether voluntary or involuntary,
or in bankruptcy or insolvency, all principal of (and premium and
additional amounts, if any) and interest due upon all Senior
Indebtedness must be paid in full before the Holders of the Senior
Subordinated Securities and the Subordinated Securities or the
Trustee is entitled to receive or retain any assets so distributed in
respect of the Senior Subordinated Securities or the Subordinated
Securities. By reason of this provision, in the event of insolvency,
Holders of the Senior Subordinated Securities and the Subordinated
Securities may recover less, ratably, than other creditors of the
Issuer, including holders of Senior Indebtedness.
"Senior Indebtedness" means, when used with respect to any series
of Senior Subordinated Securities or Subordinated Securities, the
principal of (and premium, if any) and interest on (a) all
indebtedness of the Issuer (including indebtedness of others
guaranteed by the Issuer) other than the Subordinated Securities
which is (i) for money borrowed or (ii) evidenced by a note or
similar instrument given in connection with the acquisition of any
businesses, properties or assets of any kind, (b) obligations of the
Issuer as lessee under leases required to be capitalized on the
balance sheet of the lessee under generally accepted accounting
principles, and (c) amendments, renewals, extensions, modifications
and refunding of any such indebtedness or obligation, in any such
case whether outstanding on the date of the Senior Subordinated
Indenture or the Subordinated Indenture or thereafter created,
incurred or assumed, except that, with respect to the Senior
Subordinated Securities, any particular indebtedness, obligation,
liability, guaranty, assumption, deferral, renewal, extension or
refunding shall not constitute "Senior Indebtedness" if it is
expressly stated in the governing terms, or in the assumption or
guarantee, thereof that the indebtedness involved is not senior in
right of payment to the Senior Subordinated Securities or that such
indebtedness is pari passu with or junior to the Senior Subordinated
Securities and, with respect to Subordinated Securities, any
particular indebtedness, obligation, liability, guaranty, assumption,
deferral, renewal, extension or refunding shall not constitute
"Senior Indebtedness" if it is expressly stated in the governing
terms, or in the assumption or guarantee, thereof that the
indebtedness involved is not senior in right of payment to the
Subordinated Securities or that such indebtedness is pari passu with
or junior to the Subordinated Securities. As of March 31, 1996, the
amount of Senior Indebtedness of the Company was approximately $1.1
billion. FCX Finance has no indebtedness at the date of this
Prospectus.
If this Prospectus is being delivered in connection with a series
of Senior Subordinated Securities or Subordinated Securities, the
accompanying Prospectus Supplement or the information incorporated
herein by reference will set forth the approximate amount of Senior
Indebtedness outstanding as of the end of the Issuer's most recent
fiscal quarter.
In the event that Senior Subordinated Securities or Subordinated
Securities are issued by FCX Finance, the related Guarantees issued
by the Company will be subordinate and junior in right of payment to
Senior Indebtedness of the Company on substantially the same terms
and conditions as the obligations of FCX Finance under the Senior
Subordinated Securities or the Subordinated Securities, as the case
may be, will be subordinate and junior in right of payment to Senior
Indebtedness. Accordingly, in the event of insolvency of the
Company, holders of Senior Securities of FCX Finance and the related
Guarantees may recover less, ratably, than other creditors of the
Company, including holders of Senior Securities of FCX and the
Guarantees related thereto.
Form, Exchange, Registration, Conversion, Transfer and Payment
Debt Securities are issuable in definitive form as Registered Debt
Securities, as Bearer Debt Securities or both. Unless otherwise
indicated in an applicable Prospectus Supplement, Bearer Debt
Securities will have interest coupons attached. Debt Securities are
also issuable in temporary or permanent global form.
Registered Debt Securities of any series will be exchangeable for
other Registered Debt Securities of the same series and of a like
aggregate principal amount and tenor of different authorized
denominations. In addition, with respect to any series of Bearer
Debt Securities, at the option of the holder, subject to the terms of
the Indenture, such Bearer Debt Securities (with all unmatured
coupons, except as provided below, and all matured coupons in
default) will be exchangeable into Registered Debt Securities of the
same series of any authorized denominations and of a like aggregate
principal amount and tenor. Bearer Debt Securities surrendered in
exchange for Registered Debt Securities between a record date and the
relevant date for payment of interest shall be surrendered without
the coupon relating to such date for payment of interest, and
interest accrued as of such date will not be payable in respect of
the Registered Debt Security issued in exchange for such Bearer Debt
Security, but will be payable only to the holder of such coupon when
due in accordance with the terms of the Indenture.
Debt Securities may be presented for exchange as provided above,
and Registered Debt Securities may be presented for registration of
transfer (with the form of transfer endorsed thereon duly executed),
at the office or agency of the Issuer maintained for such purposes
and at any other office or agency maintained for such purpose with
respect to any series of Debt Securities and referred to in the
applicable Prospectus Supplement, without a service charge and upon
payment of any taxes and other governmental charges as described in
the Indenture. Such transfer or exchange will be effected upon the
Issuer or its agent, as the case may be, being satisfied with the
documents of title and identity of the person making the request.
Bearer Debt Securities may only be presented for exchange at an
office or agency of the Issuer (or any other office or agency
maintained for such purpose) located outside the United States and
referred to in the applicable Prospectus Supplement.
In the event of any redemption in part, the Issuer shall not be
required to (a) issue, register the transfer of or exchange Debt
Securities of any series during a period beginning at the opening of
business 15 days prior to the selection of Debt Securities of that
series for redemption and ending on the close of business on (i) if
Debt Securities of the series are issued only as Registered Debt
Securities, the day of mailing of the relevant notice of redemption
and (ii) if Debt Securities of the series are issued as Bearer Debt
Securities, the day of the first publication of the relevant notice
of redemption except that, if Securities of the series are also
issued as Registered Debt Securities and there is no publication, the
day of mailing of the relevant notice of redemption; (b) register the
transfer of or exchange any Registered Debt Security, or portion
thereof, called for redemption, except the unredeemed portion of any
Registered Debt Security being redeemed in part; or (c) exchange any
Bearer Debt Security called for redemption, except to exchange such
Bearer Debt Security for a Registered Debt Security of that series
and like tenor which is simultaneously surrendered for redemption.
Payment and Paying Agents
Unless otherwise indicated in the applicable Prospectus
Supplement, payment of principal of (and any premium) and interest on
Bearer Debt Securities will be payable, subject to any applicable
laws and regulations, in the designated currency or currency unit, at
the offices of such Paying Agents ("Paying Agents") outside the
United States as the Issuer may designate from time to time, at the
option of the holder, by check or by transfer to an account
maintained by the payee with a bank located outside the United
States; provided, however, that the written certification described
above under "Form, Exchange, Registration and Transfer" has been
delivered prior to the first actual payment of interest. Unless
otherwise indicated in the applicable Prospectus Supplement, payment
of interest on Bearer Debt Securities on any interest payment date
will be made only against surrender to the Paying Agent of the coupon
relating to such interest payment date. No payment with respect to
any Bearer Debt Security will be made at any office or agency of the
Issuer in the United States or by check mailed to any address in the
United States or by transfer to any account maintained with a bank
located in the United States, nor shall any payments be made in
respect of Bearer Debt Securities upon presentation to the Issuer or
its designated Paying Agents within the United States.
Notwithstanding the foregoing, payments of principal of (and any
premium) and interest on Bearer Debt Securities denominated and
payable in U.S. dollars will be made at the office of the Issuer's
Paying Agent in the United States, if (but only if) payment of the
full amount thereof in U.S. dollars at all offices or agencies
outside the United States is illegal or effectively precluded by
exchange controls or other similar restrictions.
Unless otherwise indicated in the applicable Prospectus
Supplement, payment of principal of (and any premium) and interest on
Registered Debt Securities will be made in the designated currency or
currency unit at the office of such Paying Agent or Paying Agents as
the Issuer may designate from time to time, except that at the option
of the Issuer payment of any interest may be made by check mailed to
the address of the person entitled thereto as such address shall
appear on records of the Security Registrar. Unless otherwise
indicated in an applicable Prospectus Supplement, payment of any
installment of interest on Registered Debt Securities will be made to
the person in whose name such Registered Debt Security is registered
at the close of business on the record date for such interest.
Unless otherwise indicated in the applicable Prospectus
Supplement, the Corporate Trust Office of the Trustee will be
designated as a Paying Agent for the Trustee for payments with
respect to Debt Securities which are issuable solely as Registered
Debt Securities, and the Issuer will maintain a Paying Agent outside
the United States for payments with respect to Debt Securities
(subject to limitations described above in the case of Bearer Debt
Securities) which are issued solely as Bearer Debt Securities, or as
both Registered Debt Securities and Bearer Debt Securities. Any
Paying Agents outside the United States and any other Paying Agents
in the United States initially designated by the Issuer for the Debt
Securities will be named in an applicable Prospectus Supplement. The
Issuer may at any time designate additional Paying Agents or rescind
the designation of any Paying Agent or approve a change in the office
through which any Paying Agent acts, except that, if Debt Securities
of a series are issued solely as Registered Debt Securities, the
Issuer will be required to maintain a Paying Agent in each place of
payment for such series and, if Debt Securities of a series are
issued as Bearer Securities, the Issuer will be required to maintain
(a) a Paying Agent in the United States for principal payments with
respect to any Registered Debt Securities of the series (and for
payments with respect to Bearer Debt Securities of the series in the
circumstances described above, but not otherwise), and (b) a Paying
Agent in a place of payment located outside the United States where
Securities of such series and any coupons appertaining thereto may be
presented and surrendered for payment.
All monies paid by the Issuer to a Paying Agent for the payment of
principal of and any premium or interest on any Debt Security which
remain unclaimed at the end of two years after such principal,
premium or interest shall have become due and payable will (subject
to applicable escheat laws) be repaid to the Issuer and the holder of
such Debt Security or any coupon will thereafter look only to the
Issuer for payment thereof.
Temporary Global Securities
If so specified in the applicable Prospectus Supplement, all or
any portion of the Debt Securities of a series which are issuable as
Bearer Debt Securities will initially be represented by one or more
temporary global Debt Securities, without interest coupons, to be
deposited with a common depository in London for the Euroclear System
("Euroclear") and CEDEL S.A. ("CEDEL") for credit to the designated
accounts. On and after the date determined as provided in any such
temporary global Debt Security and described in the applicable
Prospectus Supplement, each such temporary global Debt Security will
be exchangeable for definitive Bearer Debt Securities, definitive
Registered Debt Securities or all or a portion of a permanent global
security, or any combination thereof, as specified in the applicable
Prospectus Supplement, but, unless otherwise specified in the
applicable Prospectus Supplement, only upon written certification in
the form and to the effect described under "Form, Exchange,
Registration and Transfer." No Bearer Debt Security delivered in
exchange for a portion of a temporary global Debt Security will be
mailed or otherwise delivered to any location in the United States in
connection with such exchange.
Unless otherwise specified in the applicable Prospectus
Supplement, interest in respect of any portion of a temporary global
Debt Security payable in respect of an payment date occurring prior
to the issuance of definitive Debt Securities or a permanent global
Subordinated Debt Security will be paid to each of Euroclear and
CEDEL with respect to the portion of the temporary global Debt
Security held for its account. Each of Euroclear and CEDEL will
undertake in such circumstances to credit such interest received by
it in respect of a temporary global Debt Security to the respective
accounts for which it holds such temporary global Debt Security only
upon receipt in each case of written certification in the form and to
the effect described above under "Form, Exchange, Registration and
Transfer" as of the relevant payment date regarding the portion of
such temporary global Debt Security on which interest is to be so
credited.
Permanent Global Securities
If any Debt Securities of a series are issuable in permanent
global form, the applicable Prospectus Supplement will describe the
circumstances, if any, under which beneficial owners of interests in
any such permanent global Debt Securities may exchange such interests
for Debt Securities of such series and of like tenor and principal
amount in any authorized form and denomination. No Bearer Debt
Security delivered in exchange for a portion of a permanent global
Debt Security shall be mailed or otherwise delivered to any location
in the United States in connection with such exchange.
Notwithstanding the foregoing, unless otherwise specified in an
applicable Prospectus Supplement, interests in a permanent global
Bearer Debt Security may be exchanged in whole (but not in part) at
the expense of the Issuer, for definitive Bearer Debt Securities, at
the request of any owner of a beneficial interest in such permanent
global Bearer Debt Security.
Book-Entry Debt Securities
The Debt Securities of a series may be issued in whole or in part
in the form of one or more Global Securities that will be deposited
with, or on behalf of, a Depositary ("Depositary") or its nominee
identified in the applicable Prospectus Supplement. In such a case,
one or more Global Securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate
principal amount of Outstanding Debt Securities of the series to be
represented by such Global Security or Securities. Unless and until
it is exchanged in whole or in part for Debt Securities in registered
form, a Global Security may not be registered for transfer or
exchange except as a whole by the Depositary for such Global Security
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 nominee to a successor Depositary or a nominee of
such successor Depositary and except in the circumstances described
in the applicable Prospectus Supplement.
The specific terms of the depositary arrangement with respect to
any portion of a series of Debt Securities to be represented by a
Global Security will be described in the applicable Prospectus
Supplement. The Issuer expects that the following provisions will
apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus
Supplement, Debt Securities which are to be represented by a Global
Security to be deposited with or on behalf of a Depositary will be
represented by a Global Security registered in the name of such
Depositary or its nominee. Upon the issuance of such Global
Security, and the deposit of such Global Security with or on behalf
of the Depositary for such Global Security, the Depositary will
credit, on its book-entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by
such Global Security to the accounts of institutions that have
accounts with such Depositary or its nominee ("participants"). The
accounts to be credited will be designated by the underwriters or
agents of such Debt Securities or by the Issuer, if such Debt
Securities are offered and sold directly by the Issuer. Ownership of
beneficial interest in such Global Security will be limited to
participants or Persons that may hold interests through participants.
Ownership of beneficial interests by participants in such Global
Security will be shown on, and the transfer of that ownership
interest will be effected only through, records maintained by the
Depositary or its nominee for such Global Security. Ownership of
beneficial interests in such Global Security by Persons that hold
through participants will be shown on, and the transfer of that
ownership interest within such participant will be effected only
through, records maintained by such participant. The laws of some
jurisdictions require that certain purchasers of securities take
physical delivery of such securities in certificated form. The
foregoing limitations and such laws may impair the ability to
transfer beneficial interests in such Global Securities.
So long as the Depositary for a Global Security, or its nominee,
is the registered owner of such Global Security, such Depositary or
such nominee, as the case may be, will be considered the sole owner
or Holder of the Securities represented by such Global Security for
all purposes under the applicable Indenture. Unless otherwise
specified in the applicable Prospectus Supplement, owners of
beneficial interests in such Global Security will not be entitled to
have Debt Securities of the series represented by such Global
Security registered in their names, will not receive or be entitled
to receive physical delivery of Debt Securities of such series in
certificated form and will not be considered the Holders thereof for
any purposes under the applicable Indenture. Accordingly, each
Person owning a beneficial interest in such Global Security must rely
on the procedures of the Depositary and, if such Person is not a
participant, on the procedures of the participant through which such
Person owns its interest, to exercise any rights of a Holder under
the applicable Indenture. The Issuer understands that under existing
industry practices, if the Issuer requests any action of Holders or
an owner of a beneficial interest in such Global Security desires to
give any notice or take any action a Holder is entitled to give or
take under an Indenture, the Depositary would authorize the
participants to give such notice or take such action, and
participants would authorize beneficial owners owning through such
participants to give such notice or take such action or would
otherwise act upon the instructions of beneficial owners owning
through them.
Principal of and any premium and interest on a Global Security
will be payable in the manner described in the applicable Prospectus
Supplement.
Limitations on Issuance of Bearer Debt Securities
In compliance with United States Federal tax laws and regulations,
Bearer Debt Securities (including securities in permanent global form
that are either Bearer Debt Securities or exchangeable for Bearer
Debt Securities) will not be offered or sold during the restricted
period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)) (generally, the first 40 days after the
closing date, and, with respect to unsold allotments, until sold)
within the United States or to United States persons (each as defined
below) other than to an office located outside the United States of a
United States financial institution (as defined in Section
1.165-12(c)(1)(v) of the United States Treasury Regulations),
purchasing for its own account or for resale or for the account of
certain customers, that provides a certificate stating that it agrees
to comply with the requirements of Section 165(j)(3)(A), (B) or (C)
of the Code and the United States Treasury Regulations thereunder, or
to certain other persons described in Section
1.163-5(c)(2)(i)(D)(1)(iii)(B) of the United States Treasury
Regulations. Moreover, such Bearer Debt Securities will not be
delivered in connection with their sale during the restricted period
within the United States. Any underwriters and dealers participating
in the offering of Bearer Debt Securities must covenant that they
will not offer or sell during the restricted period any Bearer Debt
Securities within the United States or to United States persons
(other than the persons described above) or deliver in connection
with the sale of Bearer Debt Securities during the restricted period
any Bearer Debt Securities within the United States and that they
have in effect procedures reasonably designed to ensure that their
employees and agents who are directly engaged in selling the Bearer
Debt Securities are aware of the restrictions described above. No
Bearer Debt Security (other than a temporary global Bearer Debt
Security) will be delivered in connection with its original issuance
nor will interest be paid on any Bearer Debt Security until receipt
by the Issuer of the written certification described above under
"Form, Exchange, Registration and Transfer." Each Bearer Debt
Security, other than a temporary global Bearer Debt Security, will
bear a legend to the following effect: "Any United States person who
holds this obligation will be subject to limitations under the United
States Federal income tax laws, including the limitations provided in
Sections 165(j) and 1287(a) of the Internal Revenue Code."
As used herein, "United States person" means any citizen or
resident of the United States, any corporation, partnership or other
entity created or organized in or under the laws of the United States
and any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source, and "United
States" means the United States of America (including the states and
the District of Columbia) and its possessions.
Certain Covenants of the Issuer
The Indentures will provide that the Issuer will not consolidate
with or merge into any Person, or sell, lease, convey, transfer or
otherwise dispose of all or substantially all of its assets to any
Person, and the Issuer will not permit any Person to consolidate or
merge into the Issuer or sell, lease, convey, transfer or otherwise
dispose of all or substantially all of its assets to the Issuer
unless: (a) the Person formed by or surviving such consolidation or
merger (if other than the Issuer), or to which such sale, lease,
conveyance, transfer or other disposition shall be made
(collectively, the "Successor"), is a corporation organized and
existing under the laws of the United States or any State thereof or
the District of Columbia (or, alternatively, in the case of FCX
Finance, organized under the laws of the Netherlands), and the
Successor assumes by supplemental indenture in a form satisfactory to
the Trustee all of the obligations of the Issuer, under the
Indenture; (b) immediately after giving effect to such transaction
and treating any Debt that becomes an obligation of the Issuer or any
subsidiary as a result thereof as having been incurred by the Issuer
or such subsidiary at the time of such transaction, no Default or
Event of Default shall have occurred and be continuing; and (c) the
Issuer shall have delivered to the Trustee an Officer's Certificate
and Opinion of Counsel, each stating that such merger, consolidation,
sale or conveyance and such supplemental indenture, if any, complies
with the Indenture.
Events of Default
An Event of Default is defined under each Indenture with respect
to Debt Securities of any series issued under such Indenture as
being: (a) default for 30 days in payment of any interest or
additional amounts, if any, on the Debt Securities of such series;
(b) default in payment of any principal on the Debt Securities of
such series upon maturity or otherwise; provided that, if such
default is a result of the voluntary redemption by the holders of
such Debt Securities, the amount thereof shall be in excess of
$50,000,000 or the equivalent thereof in any other currency or
composite currency; (c) default for 60 days after written notice in
the observance or performance of any other covenant or agreement in
the Debt Securities of such series or the Indenture other than a
covenant or agreement included in the Indenture which is not
applicable to the Debt Securities of such series; (d) in the case of
Guaranteed Debt Securities, the Guarantees having ceased for any
reason to be in full force or effect or FCX having asserted that the
Guarantees are not in full force an effect and (e) certain events of
bankruptcy, insolvency or reorganization; or (f) failure to pay at
maturity, or other default which results in the acceleration of any
Debt in an amount in excess of $50,000,000 or the equivalent thereof
in any other currency or composite currency without such Debt having
been discharged or such acceleration having been cured, waived,
rescinded or annulled for a period of 30 days after written notice
thereof ("Debt" being defined to mean obligations (other than non-
recourse obligations or the Debt Securities of such series), of, or
guaranteed or assumed by, the Issuer for borrowed money or evidenced
by bonds, debentures, notes or other similar instruments).
Each Indenture provides that (a) if an Event of Default due to the
default in payment of principal, premium or additional amounts, if
any, or interest on, any series of Debt Securities issued under such
Indenture or due to the Default in the performance of any other
covenant or agreement applicable to the Debt Securities of such
series but not applicable to Debt Securities of any other series
issued under such Indenture shall have occurred and be continuing,
either the Trustee or the holders of not less than 25% in principal
amount of the outstanding Debt Securities of such series may declare
the principal (or such portion thereof as may be specified in the
terms thereof) of all Debt Securities of such series and interest
accrued thereof to be due and payable immediately; and (b) if an
Event of Default due to a default in the performance of any covenants
or agreements applicable to outstanding Debt Securities of more than
one series issued under such indenture or an Event of Default
described in clause (e) above shall have occurred and be continuing,
either the Trustee or the holders of not less than 25% in principal
amount of the outstanding Debt Securities of all such affected series
(treated as one class) may declare the principal (or such portion
thereof as may be specified in the terms thereof) of all such Debt
Securities and interest accrued thereon to be due and payable
immediately. If an Event of Default due to certain events of
bankruptcy, insolvency or reorganization shall occur, the principal
(or such portion hereof as may be specified in the terms thereof) of
and interest accrued on all Debt Securities then outstanding shall
become due and payable immediately, without action by the Trustee or
the holders of any such Debt Securities. Upon certain conditions
such declarations may be annulled and past defaults may be waived
(except a continuing default in payment of principal of (or premium,
if any) or interest on, or in respect of the conversion of, such Debt
Securities) by the holders of a majority in principal amount of the
outstanding Debt Securities of all such affected series (treated as
one class).
Each Indenture provides that the Trustee, subject to the duty of
the Trustee during a default to act with the required standard of
care, has no obligation to exercise any right or power granted it
under such Indenture at the request of holders of Debt Securities
unless the Trustee is indemnified by such holders. Subject to such
provisions in each Indenture for the indemnification of the Trustee
and certain other limitations, the holders of a majority in principal
amount of the outstanding Debt Securities of all affected series
issued under such Indenture (treated as one class) may 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 such series.
Each indenture provides that no holder of Debt Securities of any
series issued under such Indenture may institute any action against
the Issuer under such Indenture (except actions for payment of
overdue principal, premium and additional amounts, (if any) or
interest or to enforce conversion rights (if any)) unless (a) such
holder previously shall have given to the Trustee written notice of
default and continuance thereof, (b) the holders of not less than 25%
in principal amount of the Debt Securities of all affected series
issued under such Indenture (treated as one class) shall have made a
written request upon the Trustee to institute such action and shall
have offered the Trustee reasonable indemnity, (c) the Trustee shall
not have instituted such action within 60 days of such request and
(d) the Trustee shall not have received directions inconsistent with
such written request by the holders of a majority in principal amount
of the outstanding Debt Securities of all affected series issued
under such indenture (treated as one class).
Each Indenture contains a covenant that the Issuer will file
annually with the Trustee a certificate of no default or a
certificate specifying any default that exists.
Defeasance
Each Indenture provides that the Issuer may defease and be
discharged from any and all obligations (except as otherwise
described in (a) below) with respect to the Debt Securities of any
series which have not already been delivered to the Trustee for
cancellation and which have either become due and payable or are by
their terms due and payable within one year (or scheduled for
redemption within one year) by irrevocably depositing with the
Trustee, as trust funds, money or, in the case of Debt Securities
payable only in U.S. dollars, U.S. Government Obligations (as
defined) which through the payment of principal and interest in
accordance with their terms will provide money, in an amount
certified to be sufficient to pay at maturity (or upon redemption)
the principal of (and premium, if any) and interest on such Debt
Securities.
In addition, each Indenture provides that with respect to each
series of Debt Securities issued under such Indenture, the Issuer may
elect either (a) to defease and be discharged from any and all
obligations with respect to the Debt Securities of such series
(except for the obligations to register the transfer or exchange or
convert the Debt Securities of such series, to replace temporary or
mutilated, destroyed, lost or stolen Debt Securities of such series,
to maintain an office or agency in respect of the Debt Securities of
such series and to hold moneys for payment in trust) or (b) to be
released from the restrictions described under "Certain Covenants of
the Issuer" and, to the extent specified in connection with the
issuance of such series of Debt Securities, other covenants
applicable to such series of Debt Securities, upon the deposit with
the Trustee (or other qualifying trustee), as trust funds, or money
or, in the case of Debt Securities payable only in U.S. dollars, U.S.
Government Obligations which through the payment of principal and
interest in accordance with their terms will provide money, in an
amount certified to be sufficient to pay at maturity (or upon
redemption) the principal of (and premium and additional amounts, if
any) and interest on the Debt Securities of such series. Such a
trust may only be established if, among other things, the Issuer has
delivered to the Trustee an opinion of counsel (as specified in the
Indenture) to the effect that the holders of the Debt Securities of
such series will not recognize income, gain or loss for Federal
income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have bene the case if such defeasance
had not occurred. Such opinion, in the case of a defeasance under
clause (a) above, must refer to and be based upon a ruling of the
Internal Revenue Service or a change in applicable Federal income tax
law occurring after the date of such Indenture.
In the event of any "legal" defeasance of any series of
Subordinated Debt Securities issued thereunder, the Subordinated Debt
Indenture provides that holders of all outstanding Senior
Indebtedness will receive written notice of such defeasance.
The foregoing provisions relating to defeasance may be modified in
connection with the issuance of any series of Debt Securities, and
any such modification will be described in the accompanying
Prospectus Supplement.
Modification of the Indenture
Each Indenture provides that the Issuer and the Trustee may enter
into supplemental indentures without the consent of the holders of
Debt Securities to: (a) secure such Debt Securities, (b) evidence
the assumption by a successor entity of the obligations of the
Issuer, (c) add covenants or Events of Default for the protection of
the holders of any Debt Securities, (d) establish the form or terms
of such Debt Securities of any series, (e) evidence the acceptance of
appointment by a successor trustee or (f) cure any ambiguity or
correct any inconsistency in the Indenture, amend the Indenture in
any other manner which the Issuer may deem necessary or desirable, if
such action will not adversely affect the interests of the holders of
Debt Securities issued thereunder.
Each Indenture also contains provisions permitting the Issuer and
the Trustee, with the consent of the holders of not less than a
majority in principal amount of Debt Securities of all series issued
under such Indenture then outstanding and affected (voting as a
single class), to add any provisions to, or change in any manner or
eliminate any of the provisions of, such Indenture or modify in any
manner the rights of the holders of the Debt Securities of each such
series; provided that the Issuer and the Trustee may not, without the
consent of the holder of each outstanding Debt Security affected
thereby, (a) extend the final maturity of any Debt Security, or
reduce the principal amount thereof, or reduce or alter the method of
computation of any amount payable in respect of interest thereon or
extend the time for payment thereof, or reduce or alter the method of
computation of any amount payable on redemption thereof or extend the
time for payment thereof, or change the currency in which the
principal thereof, premium, if any, or interest thereon is payable,
or reduce the amount payable upon acceleration or alter certain
provisions of the Indenture relating to the Debt Securities issued
thereunder not denominated in U.S. dollars, or impair the right to
institute suit for the enforcement of any conversion or any payment
on any Debt Security when due or materially and adversely affect any
conversion rights or (b) reduce the aforesaid percentage in principal
amount of Debt Securities of any series issued under such Indenture,
the consent of the holders of which is required for any such
modification.
The Subordinated Debt Indenture may not be amended to alter the
subordination of any outstanding Subordinated Debt Securities without
the consent of each holder of Senior Indebtedness then outstanding
that would be adversely affected thereby.
The Trustee
Information regarding the Trustee under an Indenture will be
included in any Prospectus Supplement relating to the Debt Securities
issued thereunder. The Indentures will provide that in case an Event
of Default shall occur (and be continuing), the Trustee will be
required to use the degree of care and skill of a prudent man in the
conduct of his own affairs. The Trustee will be under no obligation
to exercise any of its powers under the Indentures at the request of
any of the holders of the Debt Securities, unless such holders shall
have offered the Trustee reasonable indemnity against the costs,
expenses and liabilities which might be incurred by the Trustee. The
Indentures and provisions of the Trust Indenture Act incorporated by
reference therein contain limitations on the right of a Trustee,
should it become a creditor of the Issuer to obtain payment of claims
in certain cases or to realize on certain property received by it in
respect of any such claim as security or otherwise.
DESCRIPTION OF PREFERRED STOCK
The following is a description of certain general terms and
provisions of the Preferred Stock. The particular terms of any
series of Preferred Stock will be described in the applicable
Prospectus Supplement. If so indicated in a Prospectus Supplement,
the terms of any such series may differ from the terms set forth
below. The summary of terms of the Company's Preferred Stock
contained in this Prospectus and the applicable Prospectus Supplement
does not purport to be complete and is subject to, and qualified in
its entirety by, the provisions of the Company's Certificate of
Incorporation and the certificate of designations relating to the
applicable series of the Preferred Stock (the "Certificate of
Designations"), which will be filed as an exhibit to or incorporated
by reference in the Registration Statement of which this Prospectus
is a part at the time of issuance of such series of the Preferred
Stock.
The Company's Certificate of Incorporation authorizes the issuance
of 50,000,000 shares of Preferred Stock, par value of $0.10 per
share. As of March 31, 1996, there were outstanding 8,955,700
depositary shares, each representing 0.05 shares of the Company's 7%
Convertible Exchangeable Preferred Stock, 13,999,800 depositary
shares, each representing 0.05 shares of the Company's Step-Up
Convertible Preferred Stock, 6,000,000 depositary shares, each
representing 0.05 shares of the Company's Gold-Denominated Preferred
Stock, 4,305,580 depositary shares, each representing 0.05 shares of
Gold-Denominated Preferred Stock, Series II, and 4,760,000 depositary
shares, each representing 0.025 shares of the Company's Silver-
Denominated Preferred Stock. See "Outstanding Preferred Stock." The
Company's Preferred Stock may be issued from time to time by the
Board of Directors in one or more series, without stockholder
approval. The Board of Directors is authorized to determine the
voting powers (if any), designation, preferences and relative,
participating, options or other special rights, and qualifications,
limitations or restrictions thereof, for each series of Preferred
Stock that may be issued, and to fix the number of shares of each
such series. Thus, the Board of Directors, without stockholder
approval, could authorize the issuance of Preferred Stock with
voting, conversion and other rights that could adversely affect the
voting power and other rights of holders of Class A Common Stock and
Class B Common Stock or other series of Preferred Stock or that could
have the effect of delaying, deferring or preventing a change in
control of the Company.
General
Reference is made to the Prospectus Supplement for the following
terms of and information relating to the Preferred Stock of any
series (to the extent such terms are applicable to such Preferred
Stock): (a) the specific designation, number of shares, seniority
and purchase price; (b) any liquidation preference per share; (c) any
date of maturity; (d) any redemption, payment or sinking fund
provisions; (e) any dividend rate or rates and the dates on which any
such dividends will be payable (or the method by which such rates or
dates will be determined); (f) any voting rights; (g) the currency or
units based on or relating to currencies in which such Preferred
Stock are denominated and/or in which payments will or may be
payable; (h) the methods by which amounts payable in respect of such
Preferred Stock may be calculated and any commodities, currencies or
indices, or value, rate or price relevant to such calculation; (i)
whether the Preferred Stock is convertible or exchangeable and, if
so, the securities or rights into which such Preferred Stock is
convertible or exchangeable, the terms and conditions upon which such
conversions or exchanges will be effected including the initial
conversion or exchange prices or rates, the conversion or exchange
period and any other related provisions; (j) the place or places
where dividends and other payments on the Preferred Stock will be
payable; and (k) and any additional voting, dividend, liquidation,
redemption, sinking fund and other rights, preferences, privileges,
limitations and restrictions.
The Preferred Stock offered hereby will be issued in one or more
series. The holders of Preferred Stock will have no preemptive
rights. Preferred Stock, upon issuance against full payment of the
purchase price therefor, will be fully paid and nonassessable.
Neither the par value nor the liquidation preference is indicative of
the price at which the Preferred Stock will actually trade on or
after the date of issuance. All shares of Preferred Stock shall be
of equal rank with each other, regardless of series. The applicable
Prospectus Supplement will contain a description of certain United
States federal income tax consequences relating to the purchase and
ownership of the series of Preferred Stock offered by such Prospectus
Supplement.
As described under "Description of Depositary Shares," the Company
may, at its option, elect to offer depositary shares ("Depositary
Shares") evidenced by depositary receipts ("Depositary Receipts"),
each representing an interest (to be specified in the Prospectus
Supplement relating to the particular series of the Preferred Stock)
in a share of the particular series of the Preferred Stock issued and
deposited with a Depositary (as defined below).
Dividends
Holders of shares of Preferred Stock of each series shall be
entitled to receive, when, as and if declared by the Board of
Directors out of funds of the Company legally available for payment,
cash dividends, payable at such dates and at such rates per share per
annum as set forth in the applicable Prospectus Supplement. Such
rate may be fixed or variable or both. Each declared dividend shall
be payable to holders of record as they appear on the stock books of
the Company on such record dates determined by the Board of Directors
or a duly authorized committee thereof.
Dividends on any series of the Preferred Stock may be cumulative
or noncumulative, as provided in the applicable Prospectus
Supplement. If dividends on a series of Preferred Stock are
noncumulative and if the Board of Directors fails to declare a
dividend in respect of a dividend period with respect to such series,
then holders of such Preferred Stock will have no right to receive a
dividend in respect of such dividend period, and the Company will
have no obligation to pay the dividend for such period, whether or
not dividends are declared payable on any future dividend payment
dates.
Unless full cumulative dividends for all past dividend periods on
all outstanding shares of cumulative Preferred Stock and any other
series of capital stock of the Company ranking on a parity with the
Preferred Stock have been paid, or declared and set apart for
payment, the Company may not (a) declare, pay or set apart any
amounts for dividends on, or make any other distribution in cash or
other property in respect of, the Class A or Class B Common Stock or
any other stock of the Company ranking junior to the Preferred Stock
as to dividends or distribution of assets upon liquidation,
dissolution or winding up of the affairs of the Company (the Class A
or Class B Common Stock and such other stock being referred to herein
as "Junior Stock") other than a dividend payable solely in Junior
Stock, (b) purchase, redeem or otherwise acquire for value any shares
of Junior Stock, directly or indirectly, other than as a result of a
reclassification of Junior Stock, or the exchange or conversion of
one Junior Stock for or into another Junior Stock, or other than
through the use of proceeds of a substantially contemporaneous sale
of other Junior Stock, or (c) make any payment on account of, or set
aside money for, a sinking or other like fund for the purchase,
redemption or other acquisition for value of any shares of Junior
Stock. If the funds available for the payment of dividends are
insufficient to pay in full the dividends payable on all outstanding
shares of cumulative Preferred Stock and any other series of capital
stock of the Company ranking on a parity with the Preferred Stock,
the total available funds to be paid in partial dividends on such
Preferred Stock and such other series shall be divided among the
Preferred Stock and such other series in proportion to the aggregate
amount of dividends accrued and unpaid with respect to such Preferred
Stock and such other series. Accruals of dividends will not bear
interest.
Convertibility and Exchangeability
The terms, if any, on which shares of Preferred Stock of any
series may be exchanged for or converted (mandatorily or otherwise)
into shares of Preferred Stock or other securities or rights of the
Company (including rights to receive payments in cash or securities
based on the value, rate or price of one or more specified
commodities, currencies or indices) will be set forth in the
Prospectus Supplement relating thereto. The Preferred Stock will not
be convertible into or exchangeable for Class A or Class B Common
Stock of the Company.
Redemption
The terms, if any, on which shares of Preferred Stock of any
series may be redeemed will be set forth in the related Prospectus
Supplement.
If fewer than all of the outstanding shares of any series of
Preferred Stock are to be redeemed, the number of shares of such
series and the method of effecting such redemption, whether by lot or
pro rata, will be as determined by the Company (with adjustment to
avoid redemption of fractional shares).
Liquidation
Unless otherwise specified in the applicable Prospectus
Supplement, in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company, after payment or provision
for payment of the debts and other liabilities of the Company, the
holders of shares of any series of the Preferred Stock, together with
any other Preferred Stock and any other series of capital stock of
the Company ranking on a parity with such series of the Preferred
Stock, will be entitled to receive out of the remaining net assets of
the Company an amount per share as set forth in the related
Prospectus Supplement plus accrued and unpaid dividends before any
distribution is made or set apart for the holders of Junior Stock.
If the amounts payable with respect to such Preferred Stock are not
paid in full, the holders of such Preferred Stock and any stock of
the Company on a parity with such Preferred Stock as to distribution
of assets upon the liquidation, dissolution or winding up of the
Company will have the right to share ratably in any distribution of
the remaining assets of the Company in proportion to the full
respective preferential amounts to which they are entitled. After
payment of the full amount of the liquidating distribution to which
they are entitled, the holders of such series of Preferred Stock will
not be entitled to any further participation in any distribution of
the remaining assets by the Company. A consolidation or merger of
the Company with one or more corporations or the sale of all or
substantially all of the assets of the Company will not be deemed to
be a liquidation, dissolution or winding up of the Company.
Voting
The Preferred Stock of a series will not be entitled to vote,
except as provided below or in the applicable Prospectus Supplement
and as required by applicable law. Unless otherwise indicated in the
Prospectus Supplement relating to a series of Preferred Stock, each
share of such series will not be entitled to vote on matters which
holders of such series are entitled to vote. Unless otherwise
specified in the related Prospectus Supplement, at any time dividends
in an amount equal to six quarterly dividend payments on the
Preferred Stock of such series shall have accrued and be unpaid,
holders of such Preferred Stock shall have the right to a separate
class vote together with the holders of shares of other series of
stock of the Company ranking on a parity with such series of
Preferred Stock either as to dividends or the distribution of assets
upon liquidating, dissolution or winding up and upon which like
voting rights have been conferred and are exercisable (such other
series of stock being herein referred to as "Other Voting Stock") to
elect two members to the Board of Directors until dividends on such
Preferred Stock have been paid in full or declared and set apart in
trust for payment. In such case, the Board of Directors will be
increased by two directors, and the holders of Preferred Stock of
such series (either alone or with the holders of Other Voting Stock)
will have the exclusive right as members of such class, as outlined
above, to elect two directors at the next annual meeting of
stockholders. Additionally, without the affirmative vote of the
holders of a majority of the shares of Preferred Stock of such series
then outstanding, voting as a separate class, the Company may not (i)
create, authorize or issue any series or class of stock ranking prior
to the shares of Preferred Stock of such series with respect to
dividends or distributions of assets upon liquidation, dissolution or
winding up or (ii) change the rights, powers or preferences or
qualifications, limitations or restrictions thereof with respect to
the Preferred Stock of such series if such action would materially
adversely affect such holders.
As more fully described under "Description of Depositary Shares"
below, if the Company elects to issue Depositary Shares, each
representing a fraction of a share of a series of the Preferred
Stock, each such Depositary Share will, in effect, be entitled to
such fraction of a vote per Depositary Share.
No Other Rights
The share of a series of Preferred Stock will not have any
preferences, voting powers or relative, participating, optional or
other special rights except as set forth above or in the related
Prospectus supplement, the Certificate of Incorporation or the
Applicable certificate of designations or as otherwise required by
law.
Transfer Agent and Registrar
The transfer agent for each series of Preferred Stock will be
described in the related Prospectus Supplement.
Outstanding Preferred Stock
All of the Company's outstanding Preferred Stock, and any other
series of Preferred Stock upon which the right to vote for directors
has been granted in accordance with the Certificate, have the right
to vote with the holders of the Class A Common Stock, voting together
as a single class, to elect that number of directors that constitutes
20% of the authorized number of members of the Board of Directors (or
if 20% is not a whole number, then the nearest whole number of
directors that is closest to 20% of such membership). Set forth
below is a summary of certain general terms and provisions of the
series of Preferred Stock outstanding as of the date of this
Prospectus.
7% Convertible Preferred Stock. As of March 31, 1996, the Company
had outstanding 447,785 shares of 7% Convertible Exchangeable
Preferred Stock par value $0.10 per share (the "7% Convertible
Preferred Stock"). The 7% Convertible Preferred Stock is represented
by depositary shares, each of which represents .05 shares of 7%
Convertible Preferred Stock and which trade on the NYSE. The 7%
Convertible Preferred Stock is redeemable at the option of the
Company, in whole or in part, at prices declining to $25 per
depositary share. The 7% Convertible Preferred Stock ranks, as to
payments of dividends and distributions upon liquidation, pari passu
with the Company's Step-Up Convertible Preferred Stock (as defined
below), Gold-Denominated Preferred Stock (as defined below) and the
Silver-Denominated Preferred Stock (as defined below) and senior to
the Company's Class A Common Stock and Class B Common Stock. Holders
of shares of 7% Convertible Preferred Stock are entitled to receive
cumulative cash dividends at an annual rate equivalent to $35 per
share ($1.75 per Depositary Share) when and as and if declared by the
Board of directors of the Company, which dividends are payable
quarterly. After full cumulative dividends on 7% Convertible
Preferred Stock for all past and current quarterly dividend periods
have been paid in full, the 7% Convertible Preferred Stock will not
be entitled to participate with the Class A Common Stock and Class B
Common Stock in any further distributions by the Company (except upon
liquidation, dissolution or winding up of the Company). In the event
of any such liquidation, dissolution or winding up, after payment or
provision for payment of the debts and other liabilities of the
Company, the holders of 7% Convertible Preferred Stock will be
entitled to receive out of the remaining net assets of the Company
$500 per share ($25 per Depositary Share) in cash plus accrued and
unpaid dividends before any distribution is made or set apart for the
holders of the Class A Common Stock and Class B Common Stock or any
other stock of the Company ranking junior to the Special Preference
Stock as to dividends or distribution of assets upon liquidation,
dissolution or winding up of the affairs of the Company.
Each depositary share representing 7% Convertible Preferred Stock
is convertible at the option of the holder at any time, unless
previously redeemed, into shares of Class A Common Stock at a rate of
1.0208 shares per depositary share (equivalent to a conversion price
of $24.41 per share of Class A Common Stock), subject to adjustment
in certain circumstances. The depositary shares are exchangeable in
whole at the option of the Company on any quarterly dividend payment
date for the Company's 7% Convertible Subordinated Debentures due
2007 (the "Debentures") at a rate of $25.00 principal amount of
Debentures for each depositary share. The Debentures, if issued,
will be convertible at the option of the holder at any time, unless
previously redeemed, into Class A Common Stock at the conversion
price for depositary shares for which the Debentures have previously
been exchanged, subject to adjustment in certain circumstances.
The 7% Convertible Preferred Stock has limited voting rights
triggered by the failure of the Company to pay dividends in an amount
equal to six full quarterly dividends or by the Company's proposed
amendment to its Certificate of Incorporation so as to adversely
affect the rights of holders of 7% Convertible Preferred Stock.
Voting rights are not triggered upon amendment to the Certificate to
authorize other series of stock of the Company, whether ranking
senior to, on a parity with or junior to the 7% Convertible Preferred
Stock a to dividends or rights upon liquidation.
Step-Up Convertible Preferred Stock. As of March 31, 1996, the
Company had outstanding 699,990 shares of Step-Up Convertible
Preferred Stock, par value $0.10 per share (the "Step-Up Convertible
Preferred Stock"). The Step-Up Convertible Preferred Stock is
represented by depositary shares, each of which represents 0.05
shares of such stock and which trade on the NYSE. The Step-Up
Convertible Preferred Stock ranks, as to payment of dividends and
distribution upon liquidation, pari passu with the Company's 7%
Convertible Preferred Stock, the Gold-Denominated Preferred Stock (as
defined below) and the Silver-Denominated Preferred Stock (as defined
below) and senior to the Company's Class A Common Stock and Class B
Common Stock.
The Step-Up Convertible Preferred Stock has a liquidation
preference equivalent to $25.00 per depositary share and is
convertible at the option of the holder at any time, unless
previously redeemed. Dividends on the Step-Up Convertible Preferred
Stock are cumulative and are payable quarterly in an amount
equivalent to $1.25 per annum per depositary share through August 1,
1996 and thereafter in an amount equivalent to $1.75 per annum per
depositary share until redemption or conversion.
The Step-Up Convertible Preferred Stock is not redeemable prior to
August 1, 1996. Thereafter and prior to August 1, 1999, the Step-Up
Convertible Preferred Stock is redeemable at the option of the
Company, in whole or in part, for such number of shares of Class A
Common Stock as are issuable at the conversion rate. The Company may
exercise this option (and subject to certain other conditions) only
if, for 20 trading days within any period of 30 consecutive trading
days, including the last trading day of such period, the trading
prices of the Class A Common Stock has exceeded 125% of the
conversion price in effect on the last trading day. After August 1,
1999, the Step-Up Convertible Preferred Stock is fully redeemable at
the option of the Company at a redemption price equivalent to $25.00
per depositary share, plus accrued and unpaid dividends. The Company
may, at its option, subject to certain exceptions, pay the redemption
price in cash, Class A Common Stock or any combination thereof.
The Step-Up Convertible Preferred Stock has limited additional
voting rights with respect to the election of directors upon the
failure of the Company to pay dividends in an amount equal to six
full quarterly dividends and the right to vote as a separate class on
any proposal to amend the Certificate so as to adversely affect the
rights of holders of Step-Up Convertible Preferred Stock or create,
authorize or issue any series or class of stock ranking senior to the
shares of Step-Up Convertible Preferred Stock with respect to
dividends or the distribution of assets upon liquidation, dissolution
or winding up of the Company. The Step-Up Convertible Preferred
Stock does not have voting rights with respect to any amendment to
the Certificate to authorize other series of stock of the Company
ranking on a parity with or junior to the Step-Up Convertible
Preferred Stock as to dividends or distributions upon liquidation,
dissolution or winding up.
Gold-Denominated Preferred Stock. As of March 31, 1996, the
Company had outstanding 300,000 shares of Gold-Denominated Preferred
Stock ("Series I") and 215,279 shares of Gold-Denominated Preferred
Stock, Series II ("Series II" and, together with Series I, the "Gold-
Denominated Preferred Stock"). The Gold-Denominated Preferred Stock
is represented by depositary shares, each of which represents 0.05
shares of such stock and which are traded on the NYSE. The Gold-
Denominated Preferred Stock ranks, as to the payment of dividends and
distribution upon liquidation, pari passu with the 7% Convertible
Exchangeable Preferred Stock, the Step-Up Convertible Preferred Stock
and the Silver-Denominated Preferred Stock and senior to the
Company's Class A Common Stock and Class B Common Stock.
The Gold-Denominated Preferred Stock has a liquidation preference
equivalent to the dollar equivalent value of 0.10 ounces of gold per
depositary share plus accrued and unpaid dividends. Dividends on the
Gold-Denominated Preferred Stock are cumulative and are payable
quarterly, in the case of Series I, in an amount equivalent to the
dollar value of 0.000875 ounces of gold per depositary share and, in
the case of Series II, in an amount equivalent to the dollar
equivalent value of 0.0008125 ounces of gold per depositary share.
Each of Series I and Series II is subject to mandatory redemption,
out of funds legally available therefor, on August 1, 2003 and on
February 1, 2006, respectively, at an amount equivalent to the dollar
equivalent value of 0.10 ounce of gold per depositary share plus
accrued and unpaid dividends. The Gold-Denominated Preferred Stock
is not subject to redemption at the option of the Company, except in
limited circumstances. The Company does not have the right to make
any mandatory or optional redemption of any Gold-Denominated
Preferred Stock unless full cumulative dividends for all past
dividend periods shall have been paid or declared and set aside for
payment upon all depositary shares and all other outstanding shares
of stock of the Company ranking, as to dividends, on a parity with
the Gold-Denominated Preferred Stock. For purposes of this
discussion, the "dollar equivalent value" of a specified number of
ounces of gold means that number of ounces multiplied by a reference
price determined by taking the average of the London P.M. gold fixing
price for an ounce of gold on a specified number of days prior to the
date of determination.
The Gold-Denominated Preferred Stock has limited additional voting
rights with respect to the election of directors upon the failure of
the Company to pay dividends in an amount equal to six full quarterly
dividends and the right to vote as a separate class on any proposal
to amend the Certificate so as to adversely affect the rights of
holders of Gold-Denominated Preferred Stock or create, authorize or
issue any series or class of stock ranking senior to the shares of
Gold-Denominated Preferred Stock with respect to dividends or the
distribution of assets upon liquidation, dissolution or winding upon
of the Company. The Gold-Denominated Preferred Stock does not have
voting rights with respect to any amendment to the Certificate to
authorize other series of stock of the Company ranking on a parity
with or junior to the Gold-Denominated Preferred Stock as to
dividends or distributions upon liquidation, dissolution or winding
up.
Silver-Denominated Preferred Stock. As of March 31, 1996, the
Company had outstanding 119,000 shares of Silver-Denominated
Preferred Stock (the "Silver-Denominated Preferred Stock"). The
Silver-Denominated Preferred Stock is represented by depositary
shares, each of which represents 0.025 shares of such stock and which
are traded on the NYSE. The Silver-Denominated Preferred Stock
ranks, as to the payment of dividends and distribution upon
liquidation, pari passu with the 7% Convertible Exchangeable
Preferred Stock, the Step-Up Convertible Stock and the Gold-
Denominated Preferred Stock and senior to the Company's Class A
Common Stock and Class B Common Stock.
The depositary shares have a liquidation preference equivalent to
the dollar equivalent value of 4 ounces of silver per depositary
share, plus accrued and unpaid dividends. Dividends on the Silver-
Denominated Preferred Stock are cumulative and payable quarterly, in
an amount equivalent to the dollar value of 0.04125 ounces of silver
per depositary share.
The Company will redeem annually on August 1 beginning in 1999,
out of funds legally available therefor, a number of Silver-
Denominated Preferred Stock shares equal to one-eighth of the shares
originally issued, at an amount equivalent to the dollar equivalent
value of 40 ounces of silver per depositary share plus accrued and
unpaid dividends. Silver-Denominated Preferred Stock will not
subject to redemption at the option of the Company, except that, if
at any time the total number of shares of Silver-Denominated
Preferred Stock outstanding shall be less than 15% of the total
number of shares of Silver-Denominated Preferred Stock originally
issued, the Company will have the right to redeem the shares of
Silver-Denominated Preferred Stock, in whole but not in part, on any
subsequent quarterly dividend date at a redemption price equivalent
to the dollar equivalent value of the liquidation preference
described above plus a pro rata portion of the accrued and unpaid
dividends on the shares of Silver-Denominated Preferred Stock to the
date fixed for redemption. The Company will not have the right to
make a mandatory or optional redemption of any shares of Silver-
Denominated Preferred Stock unless full cumulative dividends for all
past dividend periods shall have been paid or declared and set aside
for payment upon all shares of Silver-Denominated Preferred Stock and
all other outstanding shares of stock of the Company ranking, as to
dividends pari passu with the Silver-Denominated Preferred Stock.
For purposes of this discussion, the "dollar equivalent value" of a
specified number of ounces of silver means that number of ounces
multiplied by a reference price determined by taking the average of
the London silver fixing price for an ounce of silver on a specified
number of days prior to the date of determination.
The Silver-Denominated Preferred Stock has limited additional
voting rights with respect to the election of directors upon the
failure of the Company to pay dividends in an amount equal to six
full quarterly dividends and the right to vote as a separate class on
any proposal to amend the Certificate so as to adversely affect the
rights of holders of Silver-Denominated Preferred Stock or create,
authorize or issue any series or class of stock ranking senior to the
shares of Silver-Denominated Preferred Stock with respect to
dividends or the distribution of assets upon liquidation, dissolution
or winding up of the Company. The Silver-Denominated Preferred Stock
does not have voting rights with respect to any amendment to the
Certificate to authorize other series of stock of the Company ranking
on a parity with or junior to the Silver-Denominated Preferred as to
dividends or distributions upon liquidation, dissolution or winding
up.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement
of certain provisions of the Deposit Agreement (as defined below) and
of the Depositary Shares and Depositary Receipts does not purport to
be complete and is subject to, and qualified in its entirety by
reference to, the form of Deposit Agreement and form of Depositary
Receipts relating to each series of the Preferred Stock which will be
filed with the Commission as an exhibit to the Registration Statement
of which this Prospectus is a part.
General
The Company may, at its option, elect to have shares of Preferred
Stock represented by Depositary Shares. The shares of any series of
the Preferred Stock underlying the Depositary Shares will be
deposited under a separate deposit agreement (the "Deposit
Agreement") between the Company and a bank or trust company selected
by the Company (the "Depositary"). The Prospectus Supplement
relating to a series of Depositary Shares will set forth the name and
address of the Depositary. Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share will be entitled, in
proportion to the applicable interest in the number of shares of
Preferred Stock underlying such Depositary Share, to all the rights
and preferences of the Preferred Stock underlying such Depositary
Share (including dividend, voting, redemption, conversion, exchange
and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts
issued pursuant to the Deposit Agreement, each of which will
represent the applicable interest in a number of shares of a
particular series of the Preferred Stock described in the applicable
Prospectus Supplement.
Unless otherwise specified in the Prospectus Supplement, a holder
of Depositary Shares is not entitled to receive the shares of
Preferred Stock underlying the Depositary Shares.
Dividends and Other Distributions
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the
record holders of Depositary Shares representing such Preferred Stock
in proportion to the numbers of such Depositary Shares owned by such
holders on the relevant record date.
In the event of a distribution other than in cash, the Depositary
will distribute property received by it to the record holders of
Depositary Shares entitled thereto or the Depositary may, with the
approval of the Company, sell such property and distribute the net
proceeds from such sale to such holders.
The Deposit Agreement also contains provisions relating to the
manner in which any subscription or similar rights offered by the
Company to holders of Preferred Stock shall be made available to
holders of Depositary Shares.
Conversion and Exchange
If any Preferred Stock underlying the Depositary Shares is subject
to provisions relating to its conversion or exchange as set forth in
the Prospectus Supplement relating thereto, each record holder of
Depositary Shares will have the right or obligation to convert or
exchange such Depositary Shares into other securities of the Company
or rights or payments (including rights to receive payments in cash
or securities based on the value, rate or price of one or more
specified commodities, currencies or indices) pursuant to the terms
thereof.
Redemption of Depositary Shares
If Preferred Stock underlying the Depositary Shares is subject to
redemption, the Depositary Shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or
in part, of the Preferred Stock held by the Depositary. The
redemption price per Depositary Share will be equal to the aggregate
redemption price payable with respect to the number of shares of
Preferred Stock underlying the Depositary Shares. Whenever the
Company redeems Preferred Stock from the Depositary, the Depositary
will redeem as of the same redemption date a proportionate number of
Depositary Shares representing the shares of Preferred Stock that
were redeemed. If less than all the Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed will be selected by
lot or pro rata as may be determined by the Company.
After the date fixed for redemption, the Depositary Shares so
called for redemption will no longer be deemed to be outstanding and
all rights of the holders of the Depositary Shares will cease, except
the right to receive the redemption price payable upon such
redemption. Any funds deposited by the Company with the Depositary
for any Depositary Shares which the holders thereof fail to redeem
shall be returned to the Company after a period of two years from the
date such funds are so deposited.
Voting
Upon receipt of notice of any meeting or action in lieu of any
meeting at which the holders of any shares of Preferred Stock
underlying the Depositary Shares are entitled to vote, the Depositary
will mail the information contained in such notice to the record
holders of the Depositary Shares relating to such Preferred Stock.
Each record holder of such Depositary Shares on the record date
(which will be the same date as the record date for the Preferred
Stock) will be entitled to instruct the Depositary as to the exercise
of the voting rights pertaining to the number of shares of Preferred
Stock underlying such holder's Depositary Shares. The Depositary
will endeavor, insofar as practicable, to vote the number of shares
of Preferred Stock underlying such Depositary Shares in accordance
with such instructions, and the Company will agree to take all action
which may be deemed necessary by the Depositary in order to enable
the Depositary to do so.
Amendment of the Deposit Agreement
The form of Depositary Receipt evidencing the Depositary Shares
and any provision of the Deposit Agreement may at any time be amended
by agreement between the Company and the Depositary, provided,
however, that any amendment which materially and adversely alters the
rights of the existing holders of Depositary Shares will not be
effective unless such amendment has been approved by the record
holders of at least a majority of the Depositary Shares then
outstanding.
Charges of Depositary
The Company will pay all transfer and other taxes and governmental
charges that arise solely from the existence of the depositary
arrangements. The Company will pay charges of the Depositary in
connection with the initial deposit of the Preferred Stock and any
exchange or redemption of the Preferred Stock. Holders of Depositary
Shares will pay all other transfer and other taxes and governmental
charges, and, in addition, such other charges as are expressly
provided in the Deposit Agreement to be for their accounts.
Miscellaneous
The Company, or at the option of the Company, the Depositary, will
forward to the holders of Depositary Shares all reports and
communications from the Company which the Company is required to
furnish to the holders of Preferred Stock.
Neither the Depositary nor the Company will be liable if it is
prevented or delayed by law or any circumstance beyond its control in
performing its obligations under the Deposit Agreement. The
obligations of the Company and the Depositary under the Deposit
Agreement will be limited to performance in good faith of their
duties thereunder and they will not be obligated to prosecute or
defend any legal proceeding in respect of any Depositary Share or
Preferred Stock unless satisfactory indemnity has been furnished.
The Company and the Depositary may rely upon written advice of
counsel or accountants, or information provided by persons presenting
Preferred Stock for deposit, holders of Depositary Shares or other
persons believed to be competent and on documents believed to be
genuine.
Resignation and Removal of Depositary; Termination of the Deposit
Agreement
The Depositary may resign at any time by delivering to the Company
notice of its election to do so, and the Company may at any time
remove the Depositary, any such resignation or removal to take effect
upon the appointment of a successor Depositary and its acceptance of
such appointment. Such successor Depositary will be appointed by the
Company within 60 days after delivery of the notice of resignation or
removal. The Deposit Agreement may be terminated at the direction of
the Company or by the Depositary if a period of 90 days shall have
expired after the Depositary has delivered to the Company written
notice of its election to resign and a successor depositary shall not
have been appointed. Upon termination of the Deposit Agreement, the
Depositary will discontinue the transfer of Depositary Receipts, will
suspend the distribution of dividends to the holders thereof, and
will not give any further notices (other than notice of such
termination) or perform any further acts under the Deposit Agreement
except that the Depositary will continue to deliver Preferred Stock
certificates, together with such dividends and distributions and the
net proceeds of any sales of rights, preferences, privileges or other
property in exchange for Depositary Receipts surrendered. Upon
request of the Company, the Depositary shall deliver all books,
records, certificates evidencing Preferred Stock, Depositary Receipts
and other documents relating to the subject matter of the Deposit
Agreement to the Company.
DESCRIPTION OF WARRANTS
General
The Company may issue Warrants, including Warrants to purchase
Debt Securities ("Debt Warrants"), as well as other types of
Warrants. Warrants may be issued independently or together with any
Debt Securities or Preferred Stock and may be attached to or separate
from such Debt Securities or Preferred Stock. Each series of
Warrants will be issued under a separate warrant agreement (each a
"Warrant Agreement") to be entered into between the Company and a
warrant agent ("Warrant Agent"). The following sets forth certain
general terms and provisions of the Warrants offered hereby. Further
terms of the Warrants and the applicable Warrant Agreement are set
forth in the applicable Prospectus Supplement.
Debt Warrants
The applicable Prospectus Supplement will describe the following
terms of the Debt Warrants in respect of which this Prospectus is
being delivered: (a) the title of such Debt Warrants; (b) the
aggregate number of such Debt Warrants; (c) the price or prices at
which such Debt Warrants will be issued; (d) the currency or
currencies, including composite currencies, in which the price of
such Debt Warrants may be payable; (e) the designation, aggregate
principal amount and terms of the Debt Securities purchasable upon
exercise of such Debt Warrants; (f) the price at which and currency
or currencies, including composite currencies, in which the Debt
Securities purchasable upon exercise of such Debt Warrants may be
purchased; (g) the date on which the right to exercise such Debt
Warrants shall commence and the date on which such right shall
expire; (h) if applicable, the minimum or maximum amount of such Debt
Warrants which may be exercised at any one time; (i) if applicable,
the designation and terms of the Debt Securities or Preferred Stock
with which such Debt Warrants are issued and the number of such Debt
Warrants issued with each such Debt Security or Preferred Stock; (j)
if applicable, the date on and after which such Debt Warrants and the
related Debt Securities or Preferred Stock will be separately
transferable; (k) information with respect to book-entry procedures,
if any; (l) if applicable, a discussion of certain United States
Federal income tax considerations; and (m) any other terms of such
Debt Warrants, including terms, procedures and limitations relating
to the exchange and exercise of such Debt Warrants.
Other Warrants
The Company may issue other Warrants. The applicable Prospectus
Supplement will describe the following terms of any such other
Warrants in respect of which this Prospectus is being delivered: (a)
the title of such Warrants; (b) the aggregate number of such
Warrants; (c) the price or prices at which such Warrants will be
issued; (d) the currency or currencies, including composite
currencies, in which the price of such Warrants may be payable; (e)
the securities (other than Class A or Class B Common Stock of the
Company), which may include Preferred Stock, or other rights
(including rights to receive payments in cash or securities based on
the value, rate or price of one or more specified commodities,
currencies or indices), purchasable upon exercise of such Warrants;
(f) the price at which and the currency or currencies, including
composite currencies, in which the securities purchasable upon
exercise of such Warrants may be purchased; (g) the date on which the
right to exercise such Warrants shall commence and the date on which
such right shall expire; (h) if applicable, the minimum or maximum
amount of such Warrants which may be exercised at any one time; (i)
of applicable, the designation and terms of the Debt Securities or
Preferred Stock with which such Warrants are issued and the number of
such Warrants issued with each such Debt Security or share of
Preferred Stock; (j) if applicable, the date on and after which such
Warrants and the related Debt Securities or Preferred Stock will be
separately transferable; (k) information with respect to book-entry
procedures, if any; (l) if applicable, a discussion of certain United
States Federal income tax considerations; and (m) any other terms of
such Warrants, including terms, procedures and limitations relating
to the exchange and exercise of such Warrants.
PLAN OF DISTRIBUTION
The Company may offer Securities to or through underwriters,
through agents or dealers or directly to other purchasers.
The distribution of Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be
changed, at market prices prevailing at the time of sale, at prices
related to such market prices or at negotiated prices. The Company
also may offer and sell the Securities in exchange for one or more of
its outstanding issues of securities.
In connection with the sale of Securities, underwriters, dealers
or agents may receive compensation from the Company or from
purchasers in the form of discounts, concessions or commissions.
Underwriters, dealers and agents participating in the distribution of
the Securities may be deemed to be underwriters within the meaning of
the Securities Act.
Pursuant to agreements which may be entered into between the
Company and any underwriters or agents named in the Prospectus
Supplement, such underwriters or agents may be entitled to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act.
If so indicated in the Prospectus Supplement, the Company will
authorize underwriters or other persons acting as agents for the
Company to solicit offers by certain institutional investors to
purchase Debt Securities or Preferred Stock from the Company pursuant
to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial
and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and others, but
shall in all cases be subject to the approval of the Company. The
obligations of the purchaser under any such contract will not be
subject to any conditions except (a) the investment in the Debt
Securities or Preferred Stock by the institution shall not at the
time of delivery be prohibited by the laws of any jurisdiction in the
United States to which such institution is subject, and (b) if a
portion of the Debt Securities or Preferred Stock is being sold to
underwriters, the Company shall have sold to such underwriters the
Debt Securities or Preferred Stock not sold for delayed delivery.
Underwriters and such other persons will not have any responsibility
in respect of the validity or performance of such contracts.
All Debt Securities, Preferred Stock and Warrants offered will be
a new issue of securities with no established trading market. Any
underwriters to whom such Debt Securities, Preferred Stock and
Warrants are sold by the Company for public offering and sale may
make a market in such Debt Securities, Preferred Stock and Warrants,
but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No
assurance can be given as to the liquidity of or the trading markets
for any Debt Securities, Preferred Stock or Warrants.
Certain of the underwriters or agents and their associates may be
customers of, engage in transactions with and perform services for
the Company in the ordinary course of business.
The specific terms and manner of sale of the Securities in respect
of which this Prospectus is being delivered are set forth or
summarized in the Prospectus Supplement.
LEGAL MATTERS
The validity of the Securities offered will be passed upon for the
Company by Jones, Walker, Waechter, Poitevent, Carrere & Denegre,
L.L.P. Counsel to any underwriters, dealers or agents with respect
to any distribution or Securities will be named in the applicable
Prospectus Supplement.
EXPERTS
The audited financial statements and schedules of the Company
incorporated in this Prospectus by reference to the Company's Annual
Report on Form 10-K for the year ended December 31, 1995 have been
audited by Arthur Andersen LLP, independent public accountants as
indicated in their report with respect thereto, and are incorporated
herein by reference in reliance upon the authority of said firm as
experts in accounting and auditing in giving said report. Future
audited financial statements and schedules of the Company and the
reports thereon of the Company's independent public accountants also
will be incorporated by reference in this Prospectus in reliance upon
the authority of those accountants as experts in giving those reports
to the extent said firm has audited those financial statements and
consented to the use of their reports thereon.
The Company's reserves as of December 31, 1994 and 1995
incorporated in this Prospectus by reference to the Company's Annual
Report on Form 10-K for the year ended December 31, 1995 have been
verified by Independent Mining Consultants, Inc., and such reserve
information has been incorporated by reference in this Prospectus in
reliance upon the authority of said firm as experts in mining,
geology and reserve determination.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The estimated expenses to be paid by the Registrant in
connection with the securities being registered are as follows:
SEC registration fee $ 258,621
Rating agency fees
Legal fees and expenses *
Accounting fees and expenses *
Printing expenses *
Trustees' fees and expenses *
Blue Sky fees and expenses *
Miscellaneous *
_________
Total *
=========
*All amounts listed above other than the registration fee
are estimated.
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware
empowers the Company to indemnify, subject to the standards
therein prescribed, any person in connection with any action,
suit or proceeding brought or threatened by reason of the fact
that such person is or was a director, officer, employee or agent
of the Company. Article VIII of the Company's Certificate of
Incorporation and Article XXV of the Company's by-laws provides
that each person who was or is made a party to (or is threatened
to be made a party to) or is otherwise involved in any action,
suit, or proceeding by reason of the fact that such person is or
was a director, officer, employee or agent of the Company shall
be indemnified and held harmless by the Company to the fullest
extent authorized by the General Corporation Law of Delaware
against all expenses, liability and loss (including, without
limitation, attorneys' fees, judgments, fines and amounts paid in
settlement) reasonably incurred by such person in connection
therewith. The rights conferred by Article VIII of the Company's
Certificate of Incorporation and Article XXV of the Company's by-
laws, as the case may be, are contractual rights and include the
right to be paid by the Company the expenses incurred in
defending such action, suit or proceeding in advance of the final
disposition thereof.
Article VIII of the Company's Certificate of Incorporation
provides that the Company's directors will not be personally
liable to the Company or its stockholders for monetary damages
resulting from breaches of their fiduciary duty as directors
except (a) for any breach of the duty of loyalty to the Company
or its stockholders, (b) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of
law, (c) under Section 174 of the General Corporation Law of
Delaware, which makes directors liable for unlawful dividend or
unlawful stock repurchases or redemptions or (d) transactions
from which directors derive improper personal benefit.
The Company has an insurance policy insuring the Company's
directors and officers against certain liabilities, including
liabilities under the Securities Act of 1933.
Item 16. Exhibits.
1.1 Form of Underwriting Agreement.**
1.2 Form of Sales Agency Agreement.**
1.3 Form of Distribution Agreement.**
3.1 Composite Copy of the Certificate of Incorporation of the
Company, as amended. Incorporated by reference to
Exhibit 3.1 to the Quarterly Report on Form 10-Q of the
Company for the quarter ended June 30, 1995.
3.2 By-Laws of the Company, as amended. Incorporated by
reference to Exhibit 3.2 to the Quarterly Report on Form
10-Q of the Company for the quarter ended June 30, 1995.
3.3 Articles of Association of Finance dated March 4, 1996.*
4.1 Form of Indenture for Senior Debt Securities. *
4.2 Form of Senior Debt Security.**
4.3 Form of Indenture for Subordinated Securities.*
4.4 Form of Subordinated Debt Security.**
4.5 Form of Indenture for Senior Guaranteed Debt Securities.*
4.6 Form of Senior Guaranteed Debt Securities.**
4.7 Form of Indenture for Subordinated Guaranteed Debt
Securities.*
4.8 Form of Subordinated Guaranteed Debt Security.**
4.9 Form of Certificate of Designations of Preferred Stock.*
4.10 Form of Stock Certificate of the Class A Common Stock.*
4.11 Form of Stock Certificate of the Class B Common Stock.*
4.12 Form of Deposit Agreement.*
4.13 Form of Depositary Receipt.*
5 Opinion of Jones, Walker, Waechter, Poitevent, Carrere &
Denegre, L.L.P., as to the legality of the Securities.*
12 Statement re computation of ratios.*
23.1 Consent of Arthur Andersen LLP.*
23.2 Consent of Jones, Walker, Waechter, Poitevent, Carrere &
Denegre, L.L.P. included as part of Exhibit 5.*
23.3 Consent of Independent Mining Consultants, Inc.*
24 Powers of Attorney.*
25.1 Statement of Eligibility of Trustee on Form T-1 with
respect to Senior Debt Securities.**
25.2 Statement of Eligibility of Trustee on Form T-1 with
respect to Subordinated Debt Securities.**
25.3 Statement of Eligibility of Trustee on Form T-1 with
respect to Senior Guaranteed Debt Securities.**
25.4 Statement of Eligibility of Trustee on Form T-1 with
respect to Subordinated Guaranteed Debt Securities.**
_____________________
* Filed herewith
** To be filed by amendment or subsequently incorporated
herein.
Item 17. Undertakings
The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended (the
"Securities Act")
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
registration statement or any material change to such information
in this registration statement.
Provided, however, that the undertakings set forth in paragraphs
(i) and (ii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with the Commission by either
Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under
the Securities Act, each filing of a Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(5) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of either Registrant pursuant to the
foregoing provisions or otherwise, the Registrants have been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrants of
expenses incurred or paid by a director, officer or controlling
person of the Registrants in the successful defense of any
action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being
registered, the Registrants will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(6) The undersigned Registrant hereby undertakes to file
an application for the purpose of determining the eligibility of
the trustee to act under Subsection (a) of Section 310 of the
Trust Indenture Act ("Act") in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2)
of the Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
New Orleans, Louisiana, on the 19th day of April, 1996.
Freeport-McMoRan Copper & Gold Inc.
(Registrant)
By: /s/ James R. Moffett
______________________________
James R. Moffett,
Chairman of the Board
and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the
following persons on behalf of the Registrant and in the
capacities indicated on April 19, 1996.
Signature Title
__________ ______
/s/ James R. Moffett Chairman of the Board, Chief
___________________ Executive Officer and Director
James R. Moffett (Principal Executive Officer)
*
____________________ Executive Vice President and Chief
Richard C. Adkerson Financial Officer (Principal
Financial and Accounting Officer)
* Director
_____________________
Robert W. Bruce III
* Director
______________________
R. Leigh Clifford
* Director
_______________________
Thomas B. Coleman
* Director
_______________________
Bobby E. Cooper
* Director
________________________
Robert A. Day
* Director
_________________________
Leland O. Erdahl
* Director
_________________________
William B. Harrison, Jr.
* Director
_________________________
Henry A. Kissinger
* Director
_________________________
Bobby Lee Lackey
* Director
___________________________
Rene L. Latiolais
* Director
___________________________
Gabrielle K. McDonald
* Director
____________________________
George A. Mealey
* Director
____________________________
George Putnam
* Director
____________________________
B.M. Rankin, Jr.
* Director
____________________________
Wolfgang F. Siegel
* Director
____________________________
Eiji Umene
* Director
____________________________
J. Taylor Wharton
* Director
____________________________
Ward W. Woods, Jr.
*By: /s/ James R. Moffett
____________________________
James R. Moffett
Attorney-in-Fact
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds
to believe that it meets all of the requirements for filing on
Form S-3 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in New Orleans, Louisiana, on the 19th day of
April, 1996.
FCX Finance Company B.V.
(Registrant)
By: /s/ Richard C. Adkerson
_________________________
Richard C. Adkerson
Managing Director
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the
following persons on behalf of the Registrant and in the
capacities indicated on April 19, 1996.
Signature Title
____________ ______
/s/ Richard C. Adkerson Managing Director (Principal Executive,
________________________ Financial and Accounting Officer and
Richard C. Adkerson Authorized Representative in the United
States)
/s/ Henry A. Miller
_________________________ Managing Director
Henry A. Miller
/s/ R. Foster Duncan Managing Director
_________________________
R. Foster Duncan
/s/ John L. Koch, III Managing Director
_________________________
John L. Koch, III
<PAGE>
EXHIBIT INDEX
Sequentially
Exhibit Numbered
Number Document Description Page
1.1 Form of Underwriting Agreement.**
1.2 Form of Sales Agency Agreement.**
1.3 Form of Distribution Agreement.**
3.1 Composite Copy of the Certificate of
Incorporation of the Company, as
amended. Incorporated by reference to
Exhibit 3.1 to the Quarterly Report on
Form 10-Q of Fox for the quarter ended
June 30, 1995.
3.2 By-Laws of the Company, as amended.
Incorporated by reference to Exhibit
3.2 to the Quarterly Report on Form 10-
Q for the quarter ended June 30, 1995.
3.3 Articles of Association of Finance
dated March 4, 1996.*
4.1 Form of Indenture for Senior Debt
Securities.*
4.2 Form of Senior Debt Security.**
4.3 Form of Indenture for Subordinated
Securities.*
4.4 Form of Subordinated Debt Security.**
4.5 Form of Indenture for Senior Guaranteed
Debt Securities.*
4.6 Form of Senior Guaranteed Debt
Securities.**
4.7 Form of Indenture for Subordinated
Guaranteed Debt Securities.*
4.8 Form of Subordinated Guaranteed Debt
Security.**
4.9 Form of Certificate of Designations of Preferred
Stock.*
4.10 Form of Stock Certificate of the Class
A Common Stock.*
4.11 Form of Stock Certificate of the Class
B Common Stock.*
4.12 Form of Deposit Agreement.*
4.13 Form of Depositary Receipt.*
5 Opinion of Jones, Walker, Waechter,
Poitevent, Carrere & Denegre, L.L.P.,
as to the legality of the Securities.*
12 Statement re computation of ratios.*
23.1 Consent of Arthur Andersen LLP.*
23.2 Consent of Jones, Walker, Waechter,
Poitevent, Carrere & Denegre, L.L.P.
included as part of Exhibit 5.*
23.3 Consent of Independent Mining Consultants, Inc.*
24 Powers of Attorney.*
25.1 Statement of Eligibility of Trustee on Form T-1
with respect to Senior Debt Securities.**
25.2 Statement of Eligibility of Trustee on Form T-1
with respect to Subordinated Debt Securities.**
25.3 Statement of Eligibility of Trustee on Form T-1
with respect to Senior Guaranteed Debt
Securities.**
25.4 Statement of Eligibility of Trustee on Form T-1
with respect to Subordinated Guaranteed Debt
Securities.**
____________________
* Filed herewith.
** To be filed by amendment or subsequently
incorporated herein.
INCORPORATION PRIVATE COMPANY WITH LIMITED LIABILITY
On the fourth day of March nineteen hundred ninety-six,
there appeared before me, "Mr" Michiel George van Ravesteyn,
civil law notary, officiating in Rotterdam:
"Mr" Iris Catharina Johanna Maria van der Wee, deputy civil
law notary, residing at 3331 EH Zwijndrecht, H. Kamerlingh
Onnesstraat 59, according to her statement born at Zwijndrecht,
on the twenty-first day of February nineteen hundred and sixty-
four, single, of whom the identity has been confirmed by me,
civil law notary, by her Dutch drivers license, number
0066874871, the validity of which has not expired, for the
purposes hereof acting as written attorney of the company,
organised under the laws of Delaware, United States of America:
Freeport-McMoRan Copper & Gold Inc., with registered office at
New Orleans, Louisiana, United States of America, and with
offices at 1615 Poydras Street, New Orleans, Louisiana 70112,
United States of America.
The said power of attorney appears from a private deed which
has been attached to this deed after authentication by the
appearer.
The appearer, acting as beforementioned, hereby incorporates
a private company with limited liability with the following
articles:
Name and registered office
Article 1
1. The name of the company is: FCX Finance Company B.V.
2. It has its registered office in Rotterdam.
Objects
Article 2
The objects of the company are:
a. to borrow, to lend and to raise funds, including the issue
of bonds, promissory notes or other securities or evidence
of indebtedness as well as to enter into agreements in
connection with the aforementioned;
b. to participate in, to finance, to co-operate, to manage and
to supply advice and to render services to enterprises and
other companies;
c. to render guarantees, to bind the company and to pledge its
assets for obligations of the companies and enterprises with
which it forms a group and on behalf of third parties;
d. as well as everything pertaining to the foregoing, relating
thereto or conducive thereto; all in the widest sense of the
word.
Duration
Article 3
The company is established for an unlimited period.
Capital and shares
Article 4
1. The authorised capital of the company amounts to two hundred
thousand Dutch guilders (NLG 200,000.-), divided into two
hundred (200) shares numbered 1 upto and including 200, each
with a nominal value of one thousand Dutch guilders (NLG
1,000.-).
2. The shares are to be registered shares.
3. No share certificates shall be issued for the shares.
4. The issue of shares, alienation of shares in the capital of
the company by the company, as well as the granting of
rights to acquire these shares, is effected by the board of
directors pursuant to a resolution of the general meeting of
shareholders, hereinafter referred to as: the general
meeting - such resolution shall state the time of issue, the
number of shares to be issued, as well as the other
conditions, provided that the issue may not take place below
par.
5. The general meeting may assign its power to adopt the
resolutions referred to in the previous paragraph to another
corporate body, and may withdraw this assignment.
6. On the issue of shares, each shareholder shall have, subject
to legal provisions, a right of preference in proportion to
the aggregate amount of his shares. The right of preference
cannot be transferred.
7. The issue may only be effected against payment in full.
8. The company may only grant loans in view of the acquisition
of shares in the capital of the company or of depositary
receipts thereof to the amount of the freely distributable
reserves.
Usufruct and right of pledge on shares
Article 5
1. A right of usufruct or pledge may be established on the
shares of the company.
2. Usufructuaries and pledgees have no voting rights.
3. Usufructuaries and pledgees do not have the rights granted
by law to holders of depositary receipts for shares issued
with the cooperation of the company.
Depositary receipts for shares
Article 6
1. The company will not co-operate with the issue of depositary
receipts for shares.
2. No bearer share-certificates may be issued.
Register of shareholders
Article 7
1. The board of directors will keep a register which contains:
a. the names and addresses of shareholders;
b. the amount paid on each share;
c. the names and addresses of those who have a right of
usufruct or pledge;
d. each release of liability for payment due on shares.
2. The register must be regularly updated.
3. Each shareholder is obliged to ensure that his address is
known to the company.
4. If requested, the board of directors will, free of charge,
provide a shareholder, a usufructuary or pledgee with an
extract from the register with respect to his rights to a
share.
5. The board of directors makes the register available for
inspection by shareholders at the company's offices.
Shares in joint-ownership
Article 8
1. If shares are jointly owned, the persons entitled to these
shares may only exercise the rights attached to these shares
if they are represented for this purpose vis-a-vis the
company by a person appointed by them in writing or by the
judge.
2. The name and address of this representative are entered in
the register of shareholders.
Restrictions on transfer of shares
Article 9
1. Transfer of shares in the company - excluding transfer of
shares the company holds in its own share capital - may only
be effected with due observance of the provisions of this
article.
2. A shareholder, who wishes to transfer one or more shares,
requires the approval thereto of the general meeting.
3. The transfer should be effected within three months after
the approval has been granted or is deemed to have been
granted.
4. The approval is deemed to have been granted if the general
meeting has not, simultaneously with the refusal to approve,
notified the offering shareholder of one or more interested
parties who are willing to purchase all the shares, for
which transfer the approval is required, against payment in
cash for the price as referred to in paragraph 5 hereof; the
company may itself only be nominated as an interested party
with the approval of the offering shareholder. The approval
is also deemed to have been granted if the general meeting
has not, within six weeks after the request to approve has
been submitted, resolved thereon.
5. The price as referred to in paragraph 4 of this article is
the price as determined by mutual agreement by the offering
shareholder and the/those party/parties selected by him.
Failing an agreement thereon, the price shall be determined
by an independent expert, to be appointed by the board of
directors and the offering party in mutual agreement.
6. If the board of directors and the offering shareholder do
not reach an agreement on the appointment of the independent
expert, the appointment shall be made by the Chairman of the
Chamber of Commerce and Industries, within which territory
the company has its registered office.
7. If the beforementioned price for the shares has been
determined by the independent expert, the offering
shareholder shall be free, for a period of one month after
such price determination, to decide whether to transfer his
shares to the appointed interested party/parties.
Acquisition of own shares
Article 10
1. The company may only acquire shares in its own capital free
of charge, or if all of the following provisions are
complied with:
a. the company's own equity minus the acquisition price is
not smaller than the paid-in and called up part of the
share capital plus the reserves which must be
maintained by law;
b. the nominal amount of the shares in its capital to be
acquired and those already held by the company and its
subsidiaries does not amount to more than half of the
subscribed capital;
c. authorisation of the acquisition has been granted by
the general meeting or by another company body
appointed by it.
2. The amount of the company's own capital according to the
most recently adopted balance sheet, minus the acquisition
price for the shares in the company's capital, and minus the
distributions out of the profits or reserves to others which
were owed by the company and its subsidiaries after the date
the balance was adopted, determines the validity of the
acquisition. If more than six months have passed after a
close of the financial year without annual accounts having
been adopted, the acquisition in accordance with paragraph 1
is not permitted.
3. The previous paragraphs do not apply to shares acquired by
the company by operation of law.
4. Acquisition by the company of not fully paid-up shares in
her own capital is void.
Issue and transfer of shares
Article 11
1. For issue of shares after incorporation or for the transfer
of shares or for the creation or transfer of a limited right
thereon, a notarial deed is required.
2. Unless the company herself is a party to the transfer, the
rights attached to the shares may not be exercised before
the acknowledgement by the company - whether or not of her
own accord - of the transfer, or before the transfer has
been served to the company.
Management
Article 12
1. The company is managed by a board of directors, consisting
of a number of directors to be determined by the general
meeting.
2. If a vacancy arises in the board of directors, the board of
directors retains its powers.
3. In the event of the absence or failure to appear of all the
directors, or of the sole director, the general meeting will
make temporarily provisions.
Appointment, dismissal and salaries of directors
Article 13
1. The directors are appointed by the general meeting.
2. The general meeting will determine the salaries and other
conditions of employment of every director.
3. Directors may be suspended or dismissed by the general
meeting at any time.
4. The board of directors adopt a charter, setting out rules on
the decisionmaking process of the board of directors. The
charter requires the approval of the general meeting.
5. The board of directors may adopt an allocation of duties
stating for which duty each director has a prime
responsibility. Such allocation of duties requires the
approval of the general meeting.
Approval of management decisions
Article 14
1. The general meeting may submit resolutions of the board of
directors to its approval. Such resolutions are to be
clearly defined and notified in writing to the board of
directors.
2. The approval referred to in the previous paragraph does not
have to be given for each individual case if it has been
granted in a general sense.
3. The board of directors has to act in accordance with the
directions of the general meeting concerning the financial,
social and personnel management.
Representation of the company
Article 15
1. The company is represented in and outside law by the board
of directors and by each director.
2. If the company has conflicting interests with one or more
directors, the company may still be represented by that
director. The general meeting is always empowered to
appoint one or more persons for this purpose.
3. Legal acts between the company and the holder of all the
shares in the capital of the company have to be laid down in
writing if the company has been represented by the
shareholder. The obligation to lay down the legal act in
writing also applies if the company is represented by a
person who is entitled to a matrimonial community of goods
of which all shares are a part.
4. For the application of paragraph 3, shares held by the
company or its subsidiaries are not taken into account.
Paragraph 3 does not apply if the legal acts, and their
conditions as agreed on, are part of the customary conduct
of the business of the company.
General Meeting
Article 16
1. The annual general meeting is held no more than six months
after the end of the financial year.
2. The agenda of that meeting will contain at least the
following points:
a. the annual report;
b. adoption of the annual accounts;
c. determination of the distribution of profits.
3. Extraordinary general meetings are held whenever one of the
directors considers this desirable, or one or more
shareholders, collectively representing at least one tenth
of the issued share capital, request this in writing,
detailing the subjects to be dealt with.
Place and calling of the meeting
Article 17
1. The general meetings will be held in, Rotterdam, Amsterdam
and Haarlemmermeer (Schiphol Airport).
2. All the shareholders must be notified of a general meeting.
3. The meeting is called by the board of directors by letters
sent to the addresses stated in the register of
shareholders.
4. The letters contain the time and place of the meeting, as
well as the subjects to be dealt with.
5. The meeting will be called no later than fifteen days before
the day of the meeting.
Chairmanship
Article 18
The general meeting chooses its own chairman.
Minutes
Article 19
1. Minutes of the business of the general meeting shall be
drawn up, which are signed by the chairman of the meeting
and by a person appointed by him.
2. If an official record of the business of the meeting is
drawn up by a notary, it suffices for the chairman of the
meeting to co-sign this.
Rights related to the meeting
Article 20
1. Each shareholder is entitled to attend and speak at the
general meeting.
2. Each shareholder may be represented at the meeting by
someone authorised in writing.
Decision making
Article 21
1. Each share confers the right to cast one vote.
2. All resolutions are adopted with an absolute majority of the
votes cast, unless these Articles of Association require a
larger majority.
3. Blank votes and invalid votes are considered not to have
been cast.
4. Voting on business matters occurs orally; voting on persons
takes place in writing by unsigned ballot.
5. In the case of a tie in votes on business matters, the
proposal has been rejected.
6. If no one has acquired an absolute majority in a vote on
persons in the first vote, a new, free vote is held. If
again there is no absolute majority, there is another vote
between the two persons who obtained the most votes between
them in the second vote. If necessary, an interim vote is
held to decide between which two persons the new vote will
be held. In the case of a tie in votes after the new vote
lots will be drawn by the chairman of the meeting to reach a
decision.
7. All proposals may be accepted by acclamation if none of the
persons entitled to vote opposes this.
8. No vote may be cast in the general meeting for a share which
is held by the company or by a subsidiary company.
9. In determining to what extent the shareholders are voting,
attending or represented, or to what extent the share
capital is made available or represented, the shares for
which the law states that no vote can be cast, are not taken
into account.
Decision-making when the entire subscribed capital is present
Article 22
The general meeting may adopt resolutions regarding all subjects
which arise, provided that there is an unanimous vote, if all the
shareholders are present, even if the provisions on the place and
calling of the meeting have not been complied with.
Decision-making without calling a meeting
Article 23
Shareholders may also adopt resolutions without calling a
meeting, provided that all the shareholders have declared to be
in favour of the proposal in writing, by telegraph, telex or fax.
Financial year
Article 24
The financial year coincides with the calendar year.
Annual accounts
Article 25
1. The board of directors will draw up the annual accounts,
consisting of the balance sheets and a profit and loss
account, with an explanation thereto, within five months of
the end of the financial year, unless this period has been
extended by the general meeting for a maximum of six months
on grounds of special circumstances.
2. The annual accounts are signed by all directors; if any
signature is missing, the reason for this is stated.
Discharge of the management
Article 26
The unconditional adoption of the annual accounts by the general
meeting discharges, subject to legal limitations, the directors
for their management for the financial year concerned.
Dividend
Article 27
1. The profit is entirely at the disposal of the general
meeting.
2. The company may only make distributions to shareholders and
others entitled to profits, in as far as its equity is
larger than the paid-up and called part of the capital, plus
the reserves which must be maintained by law.
3. Distribution of profits occurs after the annual accounts
have been adopted, evidencing that such is justified.
4. The company may only make interim distributions if the
provisions of paragraph 2 have been complied with.
5. No profit is paid on shares to the company.
6. The claim to dividend expires after five years.
Amendments to the Articles of Association and dissolution of the
company
Article 28
1. A resolution to amend the Articles of Association, or to
dissolve the company, may only be adopted by the general
meeting.
2. In calling a general meeting in which there shall be dealt
with a proposal to amend the Articles of Association, the
text of the proposed amendment to the Article of Association
shall be included in the notification. In addition, this
text will be made available at the company's offices for
inspection by shareholders from the day the meeting is
called until after the meeting.
Liquidation
Article 29
1. Following the dissolution of the company, the liquidation
will be effected by the board of directors, unless the
general meeting resolves otherwise.
2. The general meeting determines the remuneration of the
liquidators.
3. During the liquidation, the provisions of the Articles of
Association will remain in force in as far as possible, such
that the provisions on the board of directors apply to the
liquidators.
4. Anything remaining after payment to the creditors is paid to
the shareholders in proportion to the number of shares they
own.
5. The books and records of the company will remain with the
person appointed for this purpose by the general meeting for
the period required by the law.
Finally the appearer declared:
- that forty (40) shares of the authorised capital numbered 1
upto and including 40 have been issued to the incorporator,
resulting in the subscribed capital amounting to forty
thousand Dutch guilders (NLG. 40.000-);
- that for the benefit of the company the incorporator has
agreed to pay up his shares in full in cash, which payment
has been effected, which appears from the statement to be
attached to this deed as referred to in the law, which
payment is hereby accepted by the company;
- that payment in foreign currency is permitted;
- that the first managing directors shall be:
Mr. Richard Carl Adkerson, residing at New Orleans,
Louisiana 70116, United States of America, 1217 Burgundy,
born at Brownsville, Tennessee, United States of America, on
December twenty-seven nineteen hundred and forty-six, of
American nationality;
Mr. Henry Allen Miller, residing at 3717 Edenborn Avenue,
Metairie, Louisiana 70002, United States of America, born
at Winston-Salem, North Carolina, United States of America,
on the twenty-sixth day of May nineteen hundred fifty-one,
of American nationality;
Mr. R. Foster Duncan, residing at 1615 Poydras Street, New
Orleans, Louisiana, United States of America, born at New
Orleans, Louisiana, United States of America, on the twenty-
second day of February nineteen hundred fifty-four, of
American nationality;
Mr. John Lester Koch, III, residing at New Orleans,
Louisiana 70116, United States of America, 1307 Philip
Street, born at Bryn Mawr, Pennsylvania, United States of
America, on September fourteen, nineteen hundred fifty-
three, of American nationality;
- that the first office address shall be: (3012 AG) Rotterdam,
the Netherlands, Coolsingel 139;
- that the first financial year shall run up to and including
the thirty-first of December nineteen hundred ninety-six;
- that the ministerial declaration of non-objection, as
referred to in Section 175 Book 2 of the Civil Code was
granted on the fourth day of February nineteen hundred
ninety-six, under B.V. 557.754 and placed on the draft of
this deed attached to this original.
The appearer is known to me, notary.
Whereof an original deed was executed in Rotterdam on the date
stated at the head.
After the meaning of this deed has been stated to the appearer
and he declared that he had noted the content of the deed and did
not desire the deed to be read out in full, after being read out
in part, this deed was immediately signed by the appearer and me,
notary.
Exhibit 4.1
FREEPORT-McMoRAN COPPER & GOLD INC., Issuer
and
_______________________, Trustee
SENIOR
INDENTURE
Dated as of _____________________, 1996
<PAGE>
TABLE OF CONTENTS
Page
PARTIES........................................................1
RECITALS.......................................................1
ARTICLE ONE - DEFINITIONS
SECTION 1.1
Certain Terms Defined.................................... 1
Authenticating Agent..................................... 1
Authorized Newspaper..................................... 2
Authorized Signatory..................................... 2
Board of Directors....................................... 2
Board Resolution......................................... 2
Business Day............................................. 2
Commission............................................... 2
Company Order............................................ 2
Corporate Trust Office................................... 2
Coupon................................................... 2
Debt..................................................... 2
Default.................................................. 2
Defeasance............................................... 2
Depositary............................................... 3
Dollar................................................... 3
ECU...................................................... 3
Event of Default......................................... 3
Exchange Act............................................. 3
Foreign Currency......................................... 3
Holder, Holder of Securities, Securityholder............. 3
Indenture................................................ 3
Insolvency Law........................................... 3
Interest................................................. 3
Interest Payment Date.................................... 3
Issuer................................................... 3
Judgment Currency........................................ 3
Officers' Certificate.................................... 4
Opinion of Counsel....................................... 4
original issue date...................................... 4
Original Issue Discount Security......................... 4
Outstanding.............................................. 4
Periodic Offering........................................ 5
Person................................................... 5
principal................................................ 5
Redemption Date.......................................... 5
Redemption Price......................................... 5
Registered Global Security............................... 5
Registered Security...................................... 5
Regular Record Date...................................... 5
Required Currency........................................ 5
Responsible Officer...................................... 5
Securities Act........................................... 5
Security or Securities................................... 6
Security Registrar....................................... 6
Stated Maturity.......................................... 6
Trust Indenture Act of 1939.............................. 6
Trustee.................................................. 6
Unregistered Security.................................... 6
U.S. Government Obligations.............................. 6
Yield to Maturity........................................ 6
ARTICLE TWO - ISSUE, EXECUTION, FORM AND REGISTRATION OF
SECURITIES
SECTION 2.1 Forms Generally................................ 6
SECTION 2.2 Form of Trustee's Certificate of
Authentication................................. 7
SECTION 2.3 Amount Unlimited; Issuable in Series........... 7
SECTION 2.4 Authentication and Delivery of
Securities.....................................10
SECTION 2.5 Execution of Securities........................12
SECTION 2.6 Certificate of Authentication..................13
SECTION 2.7 Denomination and Date of Securities;
Payments of Interest...........................13
SECTION 2.8 Registration, Transfer and Exchange............14
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost
and Stolen Securities..........................17
SECTION 2.10 Cancellation of Securities;
Disposition Thereof............................18
SECTION 2.11 Temporary Securities...........................18
ARTICLE THREE - COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest..............19
SECTION 3.2 Offices for Payments, etc......................20
SECTION 3.3 Appointment to Fill a Vacancy in
Office of Trustee..............................21
SECTION 3.4 Paying Agents..................................21
SECTION 3.5 Written Statement to Trustee...................22
SECTION 3.6 Corporate Existence............................22
SECTION 3.7 Luxembourg Publications........................22
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...................22
SECTION 4.2 Preservation and Disclosure of
Securityholders' Lists.........................23
SECTION 4.3 Reports by the Issuer..........................23
SECTION 4.4 Reports by the Trustee.........................23
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 .......................................24
SECTION 5.2 Collection of Debt by Trustee;
Trustee May Prove Debt.........................27
SECTION 5.3 Application of Proceeds........................28
SECTION 5.4 Suits for Enforcement..........................29
SECTION 5.5 Restoration of Rights on Abandonment
of Proceedings.................................29
SECTION 5.6 Limitations on Suits by
Securityholders................................30
SECTION 5.7 Unconditional Right of
Securityholders to Institute Certain
Suits..........................................30
SECTION 5.8 Powers and Remedies Cumulative; Delay
or Omission Not Waiver of Default..............30
SECTION 5.9 Control by Securityholders.....................31
SECTION 5.10 Waiver of Past Defaults........................31
SECTION 5.11 Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances..................................32
SECTION 5.12 Right of Court to Require Filing of
Undertaking to Pay Costs.......................32
ARTICLE SIX - CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the
Trustee; During Default; Prior to
Default........................................32
SECTION 6.2 Certain Rights of the Trustee..................33
SECTION 6.3 Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof................34
SECTION 6.4 Trustee and Agents May Hold
Securities or Coupons; Collections,
etc............................................35
SECTION 6.5 Monies Held by Trustee.........................35
SECTION 6.6 Compensation and Indemnification of
Trustee and Its Prior Claim....................35
SECTION 6.7 Right of Trustee to Rely on Officers'
Certificate, etc...............................36
SECTION 6.8 Persons Eligible for Appointment as
Trustee........................................36
SECTION 6.9 Resignation and Removal; Appointment
of Successor Trustee...........................36
SECTION 6.10 Acceptance of Appointment by
Successor Trustee..............................38
SECTION 6.11 Merger, Conversion, Consolidation or
Succession to Business of Trustee..............39
SECTION 6.12 Preferential Collection of Claims
Against the Issuer.............................39
SECTION 6.13 Appointment of Authenticating Agent............39
ARTICLE SEVEN - CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by
Securityholders................................40
SECTION 7.2 Proof of Execution of Instruments and
of Holding of Securities.......................40
SECTION 7.3 Holders to be Treated as Owners................41
SECTION 7.4 Securities Owned by Issuer Deemed Not
Outstanding....................................42
SECTION 7.5 Right of Revocation of Action Taken............42
SECTION 7.6 Record Date for Consents and Waivers...........42
ARTICLE EIGHT - SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without
Consent of Securityholders.....................43
SECTION 8.2 Supplemental Indentures With Consent
of Securityholders.............................44
SECTION 8.3 Effect of Supplemental Indenture...............46
SECTION 8.4 Documents to Be Given to Trustee...............46
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures.......................46
ARTICLE NINE - CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant of the Issuer Not to Merge,
Consolidate, Sell or Convey Property
Except Under Certain Conditions................46
SECTION 9.2 Successor Entity Substituted...................47
SECTION 9.3 Opinion of Counsel to Trustee..................47
ARTICLE TEN - SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED
MONIES
SECTION 10.1 Satisfaction and Discharge of
Indenture......................................48
SECTION 10.2 Application by Trustee of Funds
Deposited for Payment of Securities............52
SECTION 10.3 Repayment of Monies Held by Paying
Agent..........................................52
SECTION 10.4 Return of Monies Held by Trustee and
Paying Agent Unclaimed for Two Years...........52
SECTION 10.5 Indemnity for U.S. Government
Obligations....................................53
ARTICLE ELEVEN - MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability...........................53
SECTION 11.2 Provisions of Indenture for the Sole
Benefit of Parties and
Securityholders................................53
SECTION 11.3 Successors and Assigns of Issuer
Bound by Indenture.............................53
SECTION 11.4 Notices and Demands on Issuer, the
Trustee and Securityholders....................53
SECTION 11.5 Officers' Certificates and Opinions
of Counsel, Statements to Be
Contained Therein..............................54
SECTION 11.6 Payments Due on Saturdays, Sundays
and Legal Holidays.............................55
SECTION 11.7 Conflict of Any Provision of
Indenture with Trust Indenture Act of
1939...........................................55
SECTION 11.8 New York Law to Govern.........................55
SECTION 11.9 Counterparts...................................55
SECTION 11.10 Effect of Headings............................56
SECTION 11.11 Securities in a Foreign Currency or in ECU... 56
SECTION 11.12 Judgment Currency.............................56
ARTICLE TWELVE - REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Application of Article.........................57
SECTION 12.2 Notice of Redemption...........................57
SECTION 12.3 Payment of Securities Called for
Redemption.....................................58
SECTION 12.4 Exclusion of Certain of Securities
from Eligibility for Selection for
Redemption.....................................59
SECTION 12.5 Mandatory and Optional Sinking Funds...........59
TESTIMONIUM...................................................62
SIGNATURES AND SEALS..........................................62
ACKNOWLEDGEMENTS..............................................63
<PAGE>
CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture Act of 1939, as amended, and the
Indenture to be dated as of ___________________, 1996 between
Freeport-McMoRan Copper & Gold Inc. and ____________________, as
Trustee:
Section of the Act Section of Indenture
310(a)(1), (2) and (5)........................................6.8
310(a)(3) and (4)....................................Inapplicable
310(b)........................................6.9(a), (b) and (d)
310(c)...............................................Inapplicable
311(a) and (b)...............................................6.12
311(c)...............................................Inapplicable
312(a).............................................4.1 and 4.2(a)
312(b).....................................................4.2(b)
312(c).....................................................4.2(c)
313(a).....................................................4.4(a)
313(a)(5)..................................................4.4(b)
313(b).....................................................4.4(b)
313(c) ....................................................4.4(c)
313(d).....................................................4.4(d)
314(a)................................................3.5 and 4.3
314(b)...............................................Inapplicable
314(c).......................................................11.5
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
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
318(a).......................................................11.7
*This Cross Reference Sheet is not part of the Indenture.
<PAGE>
THIS INDENTURE, dated as of __________________________,
1996, by and between Freeport-McMoRan Copper & Gold Inc. (the
"Issuer"), a Delaware corporation, and ____________________, a
_____________________ corporation, as trustee (the "Trustee"),
WITNESSETH:
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 by 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 of the Issuer and the Trustee, 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 are defined in the Securities Act and referred to
in the Trust Indenture Act of 1939 (except as herein otherwise
expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in the Trust
Indenture Act of 1939 and in the Securities Act as in force at
the date of this Indenture. All accounting terms used herein and
not expressly defined shall have the meanings given to them in
accordance with generally accepted accounting principles, and the
term "generally accepted accounting principles" shall mean
generally accepted accounting principles in the United States
which are in effect on the date or time of any determination.
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 include the plural as well as the
singular.
"Authenticating Agent" shall have the meaning set forth
in Section 6.13.
"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 London, 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, London or 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.
"Authorized Signatory" means any of the chairman of the
Board of Directors, the president, any vice president (whether or
not designated by a number or numbers or a word or words added
before or after the title "Vice President"), the treasurer or any
assistant treasurer or the secretary or any assistant secretary
of any Person.
"Board of Directors" of any Person means the Board of
Directors of the Issuer, or any committee of such Board duly
formed and authorized to act on its behalf.
"Board Resolution" means a copy of one or more
resolutions, certified by the secretary or an assistant secretary
of the Issuer 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 a Security, a day
that in the city (or in any cities, if more than one) in which
amounts are payable, as specified in the form of such Security,
which is not a day on which banking institutions and trust
companies are authorized by law or regulation or executive order
to close.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, 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, the
body performing such duties on such date.
"Company Order" means a written statement, request or
order of the Issuer which is signed in the Issuer's name by the
chairman of the Board of Directors, the president, any executive
vice president, any senior vice president or any vice president
of the Issuer.
"Corporate Trust Office" means the office of the
Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered, which
office is, at the date as of which this Indenture is dated,
located at
.
"Coupon" means any interest coupon appertaining to a
Security.
"Debt" shall have the meaning set forth in Section 5.1.
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"Defeasance" shall have the meaning set forth in
Section 10.1.
"Depositary" means, with respect to the Securities of
any series issuable or issued in whole or in part in the form of
one or more Registered Global Securities, the Person designated
as the 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; provided that any
Person that is a Depositary hereunder must be a clearing agency
registered under the Exchange Act.
"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.
"Exchange Act" means the Securities and Exchange Act of
1934, as amended.
"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.
"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.
"Insolvency Law" means any applicable bankruptcy,
insolvency, reorganization or similar law in any applicable
jurisdiction.
"Interest" means, when used with respect to non-
interest bearing Securities, interest payable after maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"Issuer" means Freeport-McMoRan Copper & Gold Inc., a
Delaware corporation and, subject to Article Nine, its successors
and assigns.
"Judgment Currency" shall have the meaning set forth in
Section 11.12.
"Officers' Certificate" means a certificate signed by
the chairman of the board or the president or any vice president
(whether or not designated by a number or numbers or a word or
words added before or after the title "Vice President") and by
the treasurer or any assistant treasurer or the secretary or any
assistant secretary and delivered to the Trustee. Each such
certificate shall include the statements provided for in Section
11.5, if and to the extent required hereby.
"Opinion of Counsel" means an opinion in writing signed
by legal counsel, who may be an employee of or counsel to the
Issuer or such other legal counsel who may be satisfactory to the
Trustee. Each such opinion shall include the statements provided
for in Section 11.5, if and to the extent required hereby.
"original issue date" of any Security (or portion
thereof) means the earlier of (a) the Issue Date of such Security
or (b) the Issue Date of any Security (or portion thereof) for
which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution. For purposes
of this definition, "Issue Date" means the date of issue of any
series of Securities under this Indenture as more specifically
stated on the reverse of such Securities.
"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", when used with reference to Securities
of any series issued hereunder, shall, subject to the provisions
of Section 7.4, mean, as of any particular time, all Securities
of such series 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 monies 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 (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 Stated 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;
(c) Securities which shall have been paid or in
substitution for which other Securities shall have been
authenticated and delivered, or which shall have been paid,
pursuant to the terms of Section 2.9 (unless proof
satisfactory to the Trustee is presented that any of such
Securities is held by a Person in whose hands such Security
is a legal, valid and binding obligation of the Issuer); and
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, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"principal" whenever used with reference to the
Securities of any series or any portion thereof, shall be deemed
to include "and premium, if any".
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
"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, which Security shall be
without Coupons.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Registered Securities of any series
means the date specified for that purpose as contemplated by
Section 3.1, or if no such date is 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 Regular Record
Date is a Business Day.
"Required Currency" shall have the meaning set forth in
Section 11.12.
"Responsible Officer", when used with respect to the
Trustee means the Chairman of the Board of Directors, the
President, the Secretary, the Treasurer, or any other officer of
the Trustee customarily performing corporate trust functions.
"SEC Reports" shall have the meaning set forth in
Section 4.3.
"Securities Act" means the Securities Act of 1933, as
amended.
"Security" or "Securities" has the meaning stated in
the first recital of this Indenture and more particularly means
any Securities of any series, authenticated and delivered under
this Indenture.
"Security Registrar" means the Trustee or any successor
Security Registrar appointed by the Issuer.
"Stated Maturity" means, with respect to any Security,
the date specified in such Security as the fixed date on which
the principal of such security is due and payable, including
pursuant to any mandatory redemption provision (but excluding any
provision providing for the repurchase of such security at the
option of the Holder thereof upon the happening of any
contingency unless such contingency has occurred) and with
respect to any installment of interest upon such Security, the
date specified in such Security, or Coupon appertaining thereto,
if applicable as the fixed date on which such installment of
interest is due and payable.
"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 the issuance of
such series, or, if applicable, at the most recent
redetermination of interest on such series, and calculated in
accordance with generally accepted financial practice.
ARTICLE TWO
ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series
and the Coupons, if any, issued hereunder shall be substantially
in such form and bear such legends (not inconsistent with this
Indenture) as shall be established by or pursuant to one or more
Board Resolutions of the Issuer (as set forth in a Board
Resolution or, to the extent established pursuant to rather than
set forth in a Board Resolution, an Officers' Certificate detail-
ing 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, if
any. If temporary Securities are issued as permitted by Section
2.11, the form thereof also shall be established as provided in
the preceding sentence.
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.
____________________________,
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.
______________________________,
Trustee
By: ____________________________
As Authenticating Agent
By: ____________________________
Authorized Officer
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 Officers' Certificate detailing such
establishment) or 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 12.2);
(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, the Interest Payment Date
on which any such interest shall be payable and (in the case
of Registered Securities) the Regular Record Date for any
interest payable on any Interest Payment Date and/or the
method by which such rate or rates or Regular Record Date or
Dates shall be computed or determined;
(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 of the series, 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, in whole or in
part, 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, the period or
periods within which and the manner in which (if different
from the provisions of Article 12 hereof) 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 and the manner in which the
exchange rate with respect to such payments shall be
determined;
(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 (without Coupons) (and if
so, whether such Securities will be issuable as Registered
Global Securities and, if so, the Depositary therefor and
the form of any legend in addition or in lieu of that in
Section 2.4 to be borne by such Registered Global Security)
or Unregistered Securities (with or without Coupons), or any
combination of the foregoing, any restrictions or procedures
applicable to the offer, sale or delivery of Unregistered
Securities or the payment of interest thereon, if other than
as provided in Section 2.8, and the terms upon which
Unregistered Securities of any series may be exchanged for
Registered Securities of such series and vice versa, if
other than as provided in Section 2.8;
(15) whether and under what circumstances the Issuer
will pay additional amounts on the Securities of the series
to Holders, or certain Holders, thereof 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 (and the terms of any such option);
(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, depositaries authenticating or
paying agents, transfer agents or registrars or any other
agents with respect to the Securities of such series;
(18) any deletions from, modifications of or additions
to the Events of Default or covenants set forth herein
(including any defined terms relating thereto);
(19) the term and condition, upon which and the manner
in which Securities of the series may be defeased or
defeasible if different from the provisions of Article 10;
(20) whether the Securities will be issued as global
Securities and, if other than as provided in Section 2.8,
the terms upon which such global securities may be exchanged
for definitive securities;
(21) offices at which presentation and demands may be
made and notices be served, if other than the Corporate
Trust Office;
(22) 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 appertaining
thereto, if any, 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 Officers' 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 Officers'
Certificate or in any such indenture supplemental hereto.
SECTION 2.4 Authentication and Delivery of Securities.
Upon the execution and delivery of this Indenture, or from time
to time thereafter, Securities, including Coupons appertaining
thereto, if any, may be executed by the Issuer and delivered 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 and
Coupons appertaining thereto, if any, to or upon the order of the
Issuer (contained in the Company 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 a
Company Order, without any further action by the Issuer. 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
Company Order or procedures authorized by such Company Order. If
provided for in such procedures, such Company Order may authorize
authentication and delivery of Securities 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) a Company 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 Company 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 a Company Order or
pursuant to procedures acceptable to the Trustee as may be
specified from time to time by a Company Order, (c) the
maturity date or dates, original issue date or dates or
interest rate or rates and any other terms of Securities of
such series shall be determined by a Company Order or
pursuant to such procedures and (d) if provided for in such
procedures, such Company Order may authorize authentication
and delivery of Securities pursuant to oral or electronic
instructions from the Issuer or its duly authorized agent or
agents, which oral or electronic 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, Officers' 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 Officers' Certificate setting forth the form or
forms and terms of the Securities 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 Officers'
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 a
Company 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 the 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 that is material to the Issuer or, to the best
of such counsel's knowledge but without any independent
investigation, any judgment, order or decree of any
governmental body, agency or court having jurisdiction
over the Issuer 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 upon opinions of other counsel
(copies of which shall be delivered to the Trustee), who shall be
counsel reasonably satisfactory 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 any of 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
all or a portion of 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 2.4 and the Company 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 or a
portion of the Securities of such series issued and not yet
cancelled or exchanged 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 a nominee thereof or a custodian
therefor or pursuant to such Depositary's instructions and (iv)
shall bear a legend substantially to the following effect: This
Security is a Registered Global Security within the meaning of
the Indenture hereinafter referred to and is registered in the
name of a Depositary or a nominee thereof. "This Security may
not be exchanged in whole or in part for a Security registered,
and no transfer of this Security in whole or in part may be
registered in the name of any Person other than such Depositary
or a nominee thereof, except in the limited circumstances
described in the Indenture."
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 (whether or not
designated by a number or numbers or a word or words added before
or after the title "Vice President") or the Treasurer of the
Issuer, under its corporate seal (except in the case of Coupons)
which may, but need not be, attested. Such signature may be the
manual or facsimile signature of the present or any future such
chairman or officers. The corporate seal of the Issuer may be in
the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities.
Typographical and other minor errors or defects in any such
reproduction of any such signature shall not affect the validity
or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any
of the Securities or Coupons, if any, shall cease to be such
officer before the Security or Coupon so signed 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
Issuer; and any Security or Coupon may be signed on behalf of the
Issuer by such Person as, at the actual date of the execution of
such Security or Coupon, shall be the proper officer of the
Issuer, although at the date of the execution and delivery of
this Indenture any such Person was not such officer.
SECTION 2.6 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication
substantially in the form set forth in Section 2.2, 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. Such certificate by the
Trustee upon any Security executed by the Issuer shall be
conclusive evidence that the Security and Coupons, if any,
appertaining thereto so authenticated have 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 Issuer 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 Board Resolution or Resolutions or
indenture supplemental hereto referred to in Section 2.3, or, if
not so specified, each such Unregistered Security shall be dated
as of the date of issuance of the first Unregistered Security of
such series to be issued. The Securities of each series shall
bear interest, if any, from the date, and such interest shall be
payable on the Interest Payment 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 Regular
Record Date applicable to such 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 such Regular Record Date and prior to such
Interest Payment Date, except in the case of any such transfer or
exchange 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 then
cease to be payable to the Holder on such Regular Record Date by
virtue of having been such Holder and 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. Interest on any
Unregistered Securities which is payable, and punctually paid or
duly provided for, on any Interest Payment Date shall be paid to
the Holder of such Unregistered Security or of the applicable
Coupon appertaining to such Unregistered Security.
SECTION 2.8 Registration, Transfer and Exchange. The
Issuer will cause to be kept at each 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 surrender for registration of transfer of any
Registered Security of any series at any such office or agency to
be maintained for the purpose 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 such series, in any
authorized denominations and of a like aggregate principal amount
and tenor.
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, any Security may be
exchanged for a Security of the same series, of like tenor, in
authorized denominations and in an equal aggregate principal
amount upon surrender of such Security at an office or agency to
be maintained for such purpose in accordance with Section 3.2 or
as specified pursuant to Section 2.3, and the Issuer shall
execute, and the Trustee shall authenticate and deliver in
exchange therefor, the Security or Securities which the Holder
making the exchange shall be entitled to receive bearing a number
or other distinguishing symbol not contemporaneously outstanding.
Subject to the foregoing, (i) a Registered Security of any series
(other than a Registered Global Security, except as set forth
below) may be exchanged for a Registered Security or Securities
of the same series; (ii) if the Securities of any series are
issued in both registered and unregistered form, except as
otherwise specified pursuant to Section 2.3, Unregistered
Securities may be exchanged for a Registered Security or
Securities of the same series, but a Registered Security may not
be exchanged for an Unregistered Security or Securities; and
(iii) if Unregistered Securities of any series are issued in more
than one authorized denomination, except as otherwise specified
pursuant to Section 2.3, any such Unregistered Security or
Securities may be exchanged for an Unregistered Security or
Securities of the same series; provided that in connection with
the surrender of any Unregistered Securities that have Coupons
attached, all unmatured Coupons and all matured Coupons in
default must be surrendered with the Securities being exchanged.
If the Holder of an Unregistered Security is unable to produce
any such unmatured Coupon or Coupons or matured Coupon or Coupons
in default, such exchange may be effected if the Unregistered
Securities are accompanied by payment in funds acceptable to the
Issuer in an amount equal to the face amount of such missing
Coupon or Coupons, or the surrender of such missing Coupon or
Coupons may be waived by the Issuer and the Trustee if there is
furnished to them such security or indemnity as they may require
to save each of them and any paying agent harmless. If
thereafter the Holder of such Security shall surrender to any
paying agent any such missing Coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to
receive from the Issuer the amount of such payment; provided,
however, that, except as otherwise provided in Section 3.2,
interest represented by Coupons shall be payable only upon the
presentation and surrender of those Coupons and an office or
agency located outside the United States. Notwithstanding the
foregoing, in case an Unregistered Security of any series is
surrendered at any such office or agency in exchange for a
Registered Security of the same series in like tenor after the
close of business at such officer agency on (i) any Regular
Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any
subsequent record date and the before the opening of business at
such office or agency on such subsequent date for the payment of
interest in default, such Unregistered Security shall be
surrendered without the Coupon relating to such Interest Payment
Date or subsequent date for payment, as the case may be, and
interest or in interest in default, as the case may be, will not
be payable on such Interest Payment Date or subsequent date for
payment, as the case may be, in respect of the Registered
Security issued in exchange for such Unregistered Security, but
will be payable only to the Holder of such Coupon when due in
accordance with the provisions of this Indenture. 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 dis-
position thereof to the Issuer.
All Registered Securities presented for registration of
transfer, exchange, redemption, repurchase 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 the 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 (a) to issue, register the
transfer of or exchange any Securities of any series for a period
of 15 days next preceding the first mailing of notice of
redemption of Securities of such series to be redeemed, (b) to
register the transfer of or exchange 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, (c) to register the transfer of or
exchange 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, or (d) to exchange any Unregistered
Security so selected for redemption, except that such
Unregistered Security may be exchanged for a Registered Security
of that series and like tenor, provided that such Registered
Security shall be simultaneously surrendered for redemption.
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 and the
Issuer thereupon fails to appoint a successor Depositary 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 Officers' 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, of like tenor, 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 Officers' 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 foregoing (any of which, other than
the Issuer, shall rely on an Officers' 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 apparently destroyed, lost or stolen, the Issuer in
its discretion may execute, and upon the written request of any
officer of the Issuer, the Trustee shall authenticate and deliver
a new Security of the same series, of like tenor and in equal
aggregate principal amount, 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 substitution for the Security so apparently
destroyed, lost or stolen and, if applicable, with Coupons
corresponding to the Coupons appertaining to the Securities for
which substitutes are being issued. 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 apparent destruction, loss or theft, evidence to
their satisfaction of the apparent destruction, loss or theft of
such Security or Coupon and of the ownership thereof. In the
case of a mutilated or defaced Security or Coupon, the applicant
for a substitute Security or Coupon shall surrender such
mutilated or defaced Security or Coupon 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 apparently destroyed, lost or stolen, the Issuer
may, instead of issuing a substitute Security or Coupon, 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 from all risks, however
remote, and, in every case of apparent 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 apparent destruction, loss or theft of
such Security 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 apparently destroyed, lost or
stolen shall constitute an additional contractual obligation of
the Issuer, whether or not the apparently 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 or 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 apparently
destroyed, lost or stolen Securities and Coupon 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,
repurchase, 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 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 unless the Issuer shall direct that cancelled
Securities be returned to it. If the Issuer 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 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 3.2, 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
issued hereunder 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 with
respect to such Securities) at the place or places, at the
respective times and in the manner provided in the Securities of
such series 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 with
respect to such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such
interest installments 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 Securities) shall be paid, as to the installments
of interest evidenced by Coupons attached thereto, 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 entitled thereto 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 remain Outstanding, the Issuer will maintain in
the Borough of Manhattan, The City of New York, an office or
agency where the Registered Securities of each series may be
surrendered for payment and where the Registered Securities of
each series may be surrendered for registration of transfer or
exchange as is provided in this Indenture.
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 office or 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 surrendered for payment or exchange.
No payment or exchange of any Unregistered Security or Coupon
will be made upon surrender of such Unregistered Security or
Coupon at an office or 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 Borough of Manhattan, 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 prompt written notice of
the location of any such office or agency and of any change of
location thereof. The Issuer hereby initially designates the
Corporate Trust Office of the Trustee maintained in the City of
New York as the office or agency for each such purpose to be
carried out in New York. In case the Issuer shall fail to
maintain any such office or agency or shall fail to provide such
notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served
at the Corporate Trust Office.
The Issuer will cause to be kept a register at the office of
the Security Registrar in which, subject to such reasonable
regulations as it may prescribe, the Issuer will provide for the
registration of Securities and of transfers of Securities. The
Trustee is hereby initially appointed Security Registrar for the
purpose of registering Securities and transferring Securities as
herein provided.
The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of any 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 3.2. 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 6.9, 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 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;
(c) that it will, at any time during the continuance
of any such failure, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in
trust by such paying agent; and
(d) that it will in all respects comply with the
provisions of the Trust Indenture Act of 1939 applicable to
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, such sum to be held as
provided in the Trust Indenture Act of 1939, 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 until such sums shall be paid to such
Persons or otherwise disposed of as herein provided. 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 with respect
to this Indenture 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 the Trustee on or before March 31 in each year
(beginning with March 31, 1997) a brief certificate (which need
not comply with Section 11.5) from the Issuer, signed by its
principal executive officer, principal financial officer, or
principal accounting officer, stating that in the course of the
performance by the signer of his duties as an officer of the
Issuer, he would normally have knowledge of any Default or non-
compliance by the Issuer in the performance or fulfillment of any
covenant, agreement or condition of the Issuer, contained in this
Indenture, stating whether or not he has knowledge of any such
Default or non-compliance and, if so, specifying each such
Default or non-compliance of which the signer has knowledge and
the nature thereof.
SECTION 3.6 Corporate Existence. Subject to Article Nine,
the Issuer will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate
existence, rights and franchises; provided that the Issuer shall
not be required to preserve its corporate existence or any such
right or franchise if the Issuer shall determine that the
preservation thereof is no longer desirable in the conduct of its
business and that the loss thereof is not disadvantageous in any
material respect to the Holders of any series of Securities.
SECTION 3.7 Luxembourg Publications. In the event of the
publication of any notice pursuant to Section 5.11, 6.9, 6.10,
8.2, 10.4, 12.2 or 12.5, the party making such publication in 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 any Officers' 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 each covenants and agrees that it 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 Securities of each series:
(a) semiannually and not more than 15 days after each
Regular Record Date, 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 for such series.
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 Securities (i)
contained in the most recent list furnished to the Trustee as
provided in Section 4.1, (ii) received by the Trustee in its
capacity as Security Registrar for such series, if so acting, and
(iii) filed with the Trustee for the purpose of receiving notice
within two preceding years. The Trustee may destroy any list
furnished to it as provided in Section 4.1 upon receipt of a new
list so furnished.
(b) The rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or
under any series of the Securities, and the corresponding rights
and duties of the Trustee, shall be as provided by the Trust
Indenture Act.
(c) Every Holder of Securities, by receiving and
holding the same, agrees with the Issuer and the Trustee that
none of the Issuer, the Trustee or any agent of any of the Issuer
or the Trustee shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders
made pursuant to the Trust Indenture Act.
SECTION 4.3 Reports by the Issuer. The Issuer shall file
with the Trustee and the Commission, and transmit to Holders,
such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act
at the times and in the manner provided pursuant to such Act,
provided that any such information, documents or reports required
to be filed with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act ("SEC Reports") shall be filed with the
Trustee within 15 days after the same is so required to be filed
with the Commission.
SECTION 4.4 Reports by the Trustee. (a) Within 60 days
after _________ of each year, commencing with the first _____
following the first issuance of Securities pursuant to Section
2.4, if required by Section 313(a) of the Trust Indenture Act,
the Trustee shall transmit, pursuant to Section 313(c) of the
Trust Indenture Act, a brief report dated as of such ______ with
respect to any of the events specified in said Section 313(a)
which may have occurred since the later of the immediately
preceding ___________________ and the date of this Indenture.
(b) The Trustee shall transmit the reports required by
Section 313(b) of the Trust Indenture Act and Section 5.11 hereof
at the times specified therein.
(c) Reports pursuant to this Section shall be
transmitted in the manner and to the Persons required by Sections
313(c) and 313(d) of the Trust Indenture Act.
(d) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each
stock exchange upon which the Securities of any series are
listed, with the Commission and with the Issuer. The Issuer will
promptly notify the Trustee when the Securities of any series are
listed on any stock 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 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 or any
Coupon appertaining thereto (together with any additional
amounts payable with respect to such Securities) 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 their
Stated Maturity, upon any redemption by declaration or
otherwise; provided that, if such default is the result of
an optional redemption by the Holders of such Securities,
the amount thereof shall be in excess of $50,000,000 or the
equivalent thereof in any currency or composite currency; or
(c) failure on the part of the Issuer duly to comply
with, observe or perform any of the other covenants or
agreements on the part of the Issuer contained in, or
provisions of, the Securities of any series or this
Indenture (other than a covenant or agreement which is not
applicable to the Securities of such series), but only if
such default shall not have been remedied 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 either series of Securities; or
(d) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of
the Issuer in an involuntary case or proceeding under any
applicable Insolvency Law or (B) a decree or order adjudging
the Issuer a bankrupt or insolvent under an applicable
Insolvency Law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar
official of the Issuer or of any substantial part of the
property of the Issuer or ordering the winding up or
liquidation of the affairs of the Issuer and the continuance
of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60
consecutive days; or
(e) the commencement by the Issuer of a voluntary case
or proceeding under any applicable Insolvency Law or of any
other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by the Issuer to the entry of a
decree or order for relief in respect of the Issuer in an
involuntary case or proceeding under any applicable
Insolvency Law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Issuer or the
filing by the Issuer of a petition, answer or consent
seeking reorganization or relief under any applicable
Insolvency Law, or the consent by the Issuer to the filing
of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Issuer or
of any substantial part of the property of the Issuer or the
making by the Issuer of an assignment for the benefit of
creditors, or the admission by the Issuer in writing of its
inability to pay its debts generally as they become due, or
the taking of corporate action (which shall involve the
passing of one or more Board Resolutions by the Issuer) in
furtherance of any such action,
(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
("Debt") 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 affected thereby;
(g) a default with respect to any obligations, which
default results in the acceleration of Debt in an amount in
excess of $50,000,000 or the equivalent thereof in any other
currency or composite currency without such Debt 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 affected
thereby; or
(h) any other Event of Default provided for with
respect to Securities of that series in the supplemental
indenture under which such series is issued or in the terms
of Securities for such series or the Coupons, if any,
appertaining thereto;
provided that if any such failure, default or acceleration
referred to in clauses (f), (g) 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, waived,
rescinded or annulled without further action on part of either
the Trustee or any of the Securityholders.
If an Event of Default described in other than those
specified in Section 5.1(d) or (e) (if the Event of Default under
clause (c), (f) or (g), as the case may be, is with respect to
less than all series of Securities then Outstanding) occurs and
is continuing, 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 each such affected series then Outstanding
hereunder (voting as a single class) 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 any such
affected 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 all such affected 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. If an Event of Default other than
those specified in Section 5.1(d) or (e) (if the Event of Default
under clause (c), (f) or (g), as the case may be, is with respect
to all series of Securities then Outstanding), occurs and is
continuing, then and in each and every such case, unless the
principal of all the Securities shall have already become due and
payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of all the Securities then
Outstanding hereunder (treated as one class), by notice in
writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if any
Securities are Original Issue Discount Securities, such portion
of the principal as may be specified in the terms thereof) of all
the Securities then Outstanding, and interest accrued thereon, if
any (together with any additional amounts payable with respect to
such Securities), to be due and payable immediately, and upon any
such declaration the same shall become immediately due and
payable. If an Event of Default specified in Section 5.1(d) or
(e) occurs, the principal of and accrued interest on the
Securities shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee
or any Securityholder.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the
Securities of such series 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 monies 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 (together with any additional amounts payable with
respect to such Securities) upon all the Securities of such
series and the principal of any and all Securities of each 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 (together with any additional
amounts payable with respect to such Securities), 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 each such series (or the respective rates of interest or
Yields to Maturity of all the Securities, as the case may be) 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 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
each such series or of all the Securities, in each case voting as
a single class, then Outstanding, by written notice to the Issuer
and 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 accrued 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 Debt 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 the Stated 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 such Securities of such series, and such Coupons,
if any, 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 principal of and interest on
Securities of such series be overdue.
If an Event of Default occurs and is continuing, 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 to protect and enforce its rights
and the rights of the Holders by such appropriate judicial
proceeding as the Trustee may deem most effectual to protect and
enforce any such rights, 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 any other obligor
upon the Securities of such series and collect in the manner
provided by law out of the property of the Issuer or any other
obligor upon the Securities of such series, wherever situated the
monies adjudged or decreed to be payable.
In the case of any judicial proceeding relating to the
Issuer or any other obligor upon the Securities of such series,
or the property or creditors of the Issuer or any such obligor,
the Trustee shall be entitled and empowered, by intervention in
such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act of 1939 in order to have
claims of the Holders and the Trustee allowed in any such
proceeding. In addition, unless prohibited by applicable law and
regulations, the Trustee shall be entitled and empowered to vote
on behalf of the Holders of Securities of any series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceeding or a Person providing similar functions in comparable
proceedings.
The Trustee shall be authorized to collect and receive any
monies 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 and all other amounts due to the Trustee or any predecessor
Trustee pursuant to Section 6.6.
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
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 series, may be prosecuted and
enforced by the Trustee without the possession of any of the
Securities of such series or Coupons appertaining to such series
or the production thereof on any trial or other proceedings
relative thereto, and any such action or proceedings instituted
by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements, advances 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 of such series or Coupons appertaining
thereto in respect of which 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 of 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 monies 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
monies on account of principal or interest, upon presentation of
the several Securities and Coupons appertaining thereto in
respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of
the same series, of like tenor, 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 the Securities such series in respect of which monies
have been collected, including any and all amounts due the
Trustee under Section 6.6;
SECOND: In case the principal of the Securities of
such series in respect of which monies 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 monies 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 monies 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 or any Securityholder shall
have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee or
to such Securityholder, then and in every such case, subject to
any determination in such proceeding, the Issuer, the Trustee and
the Securityholders shall be restored severally and respectively
to their former positions and rights hereunder, and thereafter
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, judicial or otherwise, 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 (i) such Holder previously shall have
given to the Trustee written notice of a continuing Event of
Default as hereinbefore provided, (ii) the Holders of not less
than 25% in aggregate principal amount of the Securities of such
affected series then Outstanding, treated as a single class 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; (iii) 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 proceedings; and (iv)
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 of the
Securities of such series or Coupons and the Trustee, that no one
or more Holders of Securities of such series shall have any right
in any manner whatever by virtue or by availing of any provision
of this Indenture to affect, disturb or prejudice the rights of
any other Holder of Securities or 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 (together with any additional
amounts payable with respect to such Securities) such Security or
Coupon and any interest in respect of a Default in the payment of
any such amounts, on or after the respective due dates expressed
in such Security or Coupon or Redemption Dates prescribed for
therein or to institute suit for the enforcement of any such
payment rights 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 Section
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 any
of the 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 Securityholders. 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 exercising any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee by this Indenture
with respect to or for the benefit of such Securities of such
series; provided that such direction shall not be otherwise than
in accordance with applicable 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 be lawfully taken or that the action or
proceeding so directed may expose the Trustee to personal
liability or if the Trustee in good faith by its board of
directors or the executive committee thereof shall so determine
that the actions or forbearances 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 forbearances 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 by
Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the Securities
of any series 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 the Securities of such series waive any past
Default or Event of Default hereunder with respect to the
Securities of such series and its consequences, except a Default
(a) in the payment of principal or interest on any Security of
such series or (b) in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the
Holder of each Security affected.
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. 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.
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 3.7, at least once in an Authorized
Newspaper in Luxembourg) and (ii) to all Holders of Securities of
such affected series in the manner and to the extent provided in
Section 4.4(c), unless such defaults shall have been cured before
the mailing or publication of such notice (the term "default" or
"defaults" for the purposes of this Section 5.11 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.
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 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 other than the Trustee 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 including the Trustee, 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 Outstanding, 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
particular series has occurred (which has not been cured or
waived) the Trustee shall exercise 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 willful 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, certificates 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 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 from the Issuer 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,
Officers' Certificate or any other certificate, statement,
instrument, opinion, report, notice, request, direction.
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 Officers' Certificate (unless other evidence in respect
thereof be herein specifically prescribed), and any Board
Resolution of the Issuer may be evidenced to the Trustee by
a copy thereof certified by the Secretary or assistant
secretary of the Issuer;
(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, suffered 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 then Outstanding of the
one or more series to which the Event of Default relates;
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
examination 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. 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 Section 6.12, if operative, 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 Monies Held by Trustee. Subject to the
provisions of Section 10.4 hereof, all monies 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 monies 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 but not limited to the costs and expenses of defending
itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers
or duties hereunder. The obligations of the Issuer under this
Section to compensate 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 payment of
principal of or interest on particular Securities or Coupons, and
the Securities are hereby subordinated to such senior claim.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1 or
in connection with Article Five hereof, the expenses (including
the reasonable fees and expenses of its counsel) and the
compensation for the services in connection therewith are
intended to constitute expenses of administration under any
bankruptcy law.
SECTION 6.7 Right of Trustee to Rely on Officers'
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 Officers'
Certificate of the Issuer 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 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 $50,000,000, 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 the common control with any
obligor upon any Securities issued hereunder. 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 6.9.
The provisions of this Section 6.8 are in furtherance of and
subject to Section 310(a) of the Trust Indenture Act of 1939.
SECTION 6.9 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. 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 of the Issuer, 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 giving 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 310(b) of the Trust Indenture Act of
1939 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 for
at least six months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.8 or Section
310(a) of the Trust Indenture Act of 1939 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
Issuer, 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 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 such series
and appoint a successor trustee with respect to 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 6.9 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 6.10.
(e) The Issuer shall give notice of each resignation
and each removal of the Trustee of each series of Securities and
each appointment of a successor trustee with respect to any such
series by mailing written notice of such an event by first-class
mail, postage prepaid, to the Holders of Registered Securities of
such series as their names and addresses appear in the Security
register. If any Unregistered Securities of a series affected
are then Outstanding, notice of such resignation shall be given
to the Holders thereof, (i) 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 3.7, at least once in an Authorized
Newspaper in Luxembourg) and (ii) by mailing such notice to those
Holders of Unregistered Securities who have furnished their names
and addresses to the Trustee for such purpose within the two
years preceding the giving of such notice. Each notice shall
include the name of the successor trustee for such series and the
address of its principal corporate trust office.
SECTION 6.10 Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 6.9 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 shall
become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations of its predecessor hereunder with
respect to such series, 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 monies 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 as such shall, nevertheless,
retain a prior claim upon all property or funds held or collected
by it to secure any amounts then due to 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. 10 unless at the time of such acceptance such successor
trustee shall be qualified under the provisions of Section 310(b)
of the Trust Indenture Act of 1939 and eligible under the
provisions of Section 6.8 and Section 310(a) of the Trust
Indenture Act of 1939.
Upon acceptance of appointment by a successor trustee as
provided in this Section 6. 10, the Issuer shall (i) mail notice
thereof by first-class mail to the Holders of Registered
Securities at their last addresses as they shall appear in the
Security register, or (ii) in the case of Holders of Unregistered
Securities, publish such notice 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 3.7, at least once in an Authorized Newspaper in
Luxembourg) and mail such notice to those Holders of Unregistered
Securities who have filed their names and addresses with the
Trustee for such purpose within two years preceding the giving of
such notice. Each such notice shall include the name of the
successor trustee and the address of the principal corporate
trust office. 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 6.9. If the Issuer fails to provide such notice
within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be
provided at the expense of the Issuer.
SECTION 6.11 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 of 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 310(b) of the Trust
Indenture Act of 1939 and eligible under the provisions of
Section 6.8 and Section 310(a) of the Trust Indenture Act of
1939, 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 6.12 Preferential Collection of Claims Against the
Issuer. If and when the Trustee shall be or become a creditor of
the Issuer (or any other obligor upon the Securities), the
Trustee shall be subject to the provisions of the Trust Indenture
Act regarding the collection of claims against the Issuer (or any
such other obligor).
SECTION 6.13 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, including 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 6.13 with respect
to one or more series of Securities, the Trustee may upon receipt
of a Company Order appoint a successor Authenticating Agent which
shall be acceptable to the Issuer 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, as agent of the Trustee, 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 Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar
tenor signed by such 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 such 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
or his agent or proxy of any instrument, or the authority of
such an agent or proxy to execute such 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. Prior to
surrender of a Security for registration of transfer, 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 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, 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 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 monies
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 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 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
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 of 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
Officers' Certificate listing and identifying all Securities, if
any, known by the Issuer to be owned or held by or for the
account of any of the above-described Persons; and, subject to
Sections 6.1 and 6.2, the Trustee shall be entitled to accept
such Officers' Certificate as conclusive evidence of the facts
therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such
determination.
SECTION 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 or 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.
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
Persons entitled to (i) waive any past Default with respect to
the Securities of such series in accordance with Section 5.10,
(ii) consent to any supplemental indenture in accordance with
Section 8.2 of this Indenture or (iii) waive compliance with any
term, condition or provision of any covenant hereunder (if this
Indenture should expressly provide for such waiver). 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, consent to any such supplemental
indenture or waive compliance with any such term, condition or
provision, 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 90th 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.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any
series entitled to join in the giving or making of (i) any notice
of Default, (ii) any request to institute proceedings referred to
in Section 5.6 or (iii) any direction referred to in Section 5.9,
in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of such series on such record date, and no
other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to
the applicable expiration date by Holders of the requisite
principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action
for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and
of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Trustee,
at the Issuer's expense, shall cause notice of such record date,
the proposed action by Holders and the applicable expiration date
to be given to the Issuer in writing and to each Holder of
Securities of the relevant series in the manner set forth in
Section 11.4.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer when authorized by Board Resolutions
(which resolutions 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 a
Company 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 respective covenants, agreements
and obligations of the Issuer under this Indenture or any
supplemental indenture;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions or to
surrender any right, power or option conferred by this
Indenture on the Issuer as its Board of Directors and the
Trustee shall consider to be for the protection or benefit
of the Holders of all or any series of Securities or Coupons
of any series (and if such covenants are to be for the
benefit of less than all series of Securities, stating that
such covenants are being added solely for the benefit of
such series), 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, condition 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 in regard to
matters or questions under this Indenture in any
supplemental indenture as the Issuer may deem necessary or
desirable, provided, that no action under this clause (d)
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;
(f) to make any change to comply with any requirement
of the Commission in connection with the qualification of
the Indenture under the Trust Indenture Act of 1939, as
amended; and
(g) 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, immunities or liabilities 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 Issuer, when authorized by a Board Resolution or
Resolutions (which Resolutions 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 a Company 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 alter the method of computation) of
interest thereon, or reduce (or alter the method of computation
of) any amount payable on redemption or repayment thereof or
extend the time for payment thereof, 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
principal of an Original Issue Discount Security that would be
due and payable upon an acceleration of the maturity of such
Security 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 principal amount of Securities
of any series the consent of the Holders of which is required for
any such supplemental indenture to less than a majority, or
reduce the percentage of Securities of such series necessary to
consent to waive any past Default under this Indenture to less
than a majority, or modify any of the provisions of this Section
or Section 5.10, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived, in each case, without the consent of the
Holder 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 of Coupons appertaining to such
Securities, or which modifies the rights of Holders of Securities
of such series 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 Issuer, accompanied by copies of
Board Resolutions of the Issuer (which resolutions 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 a Company Order) certified by the secretary
or an assistant secretary of the Issuer authorizing the execution
of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Securityholders 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, immunities or liabilities 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 Issuer shall give notice thereof setting forth in
general terms the substance of such supplemental indenture, (i)
to the Holders of the 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 for such purpose within two years preceding the
giving of such notice, 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 3.7, at least once in an Authorized Newspaper
in Luxembourg). 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
Officers' Certificate and an Opinion of Counsel as conclusive
evidence of any series that any such supplemental indenture
complies with the applicable provisions of this Indenture and
that the execution of such supplemental indenture is authorized
or permitted by 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 Issuer, 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 of the Issuer Not to Merge,
Consolidate, Sell or Convey Property Except Under Certain
Conditions. The Issuer covenants that it will not merge with or
into or consolidate with any Person or sell, convey, transfer,
lease or otherwise dispose of all or substantially all of its
assets to any Person and the Issuer shall not permit any Person
to consolidate with or merge into the Issuer or sell, convey,
transfer, lease or otherwise dispose of all or substantially all
of its assets to the Issuer, unless (i) either the Issuer (in the
case of a merger) shall be the continuing corporation, or the
successor corporation or the Person which acquires by sale,
conveyance, transfer, lease or disposition all or substantially
all of the assets of the Issuer (if other than the Issuer) shall
be a corporation organized under the laws of the United States of
America or any State thereof or the District of Columbia, and
shall expressly assume, by supplemental indenture, in form
satisfactory to the Trustee, executed and delivered to the
Trustee by such entity pursuant to Article Eight hereof, all of
the payment obligations of the Issuer pursuant to this Indenture
and the Securities of all series and Coupons, if any,
appertaining thereto; (ii) immediately after giving effect to
such merger, consolidation, sale, conveyance, transfer, lease or
disposition and treating any Debt which becomes an obligation of
the Issuer as a result of such transaction as having been
incurred by the Issuer at the time of such transaction, no
Default or Event of Default shall have occurred and be
continuing.
SECTION 9.2 Successor Corporation Substituted. In case of
any such consolidation, merger, sale, conveyance, transfer, lease
or disposition, and following such an assumption by the successor
corporation, such successor corporation shall succeed to and be
substituted for the Issuer, with the same effect as if it had
been named herein. Except as provided in the last paragraph of
this Section, when the successor entity assumes all obligations
of the Issuer hereunder, all obligations and covenants of the
Issuer hereunder or under the Securities shall terminate.
Such successor corporation 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 theretofore shall not have been signed by the
Issuer and delivered to the Trustee; and, upon the order of such
successor corporation, 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 and Coupons appertaining thereto, if any, which
previously shall have been signed and delivered by the officers
of the Issuer to the Trustee for authentication, and any
Securities together with any Coupons appertaining thereto which
such successor corporation 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, conveyance,
transfer, lease or disposition such changes in phraseology 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 sale, conveyance, transfer or
disposition (other than a conveyance by way of lease) covered by
this Section 9.2, the Issuer (or any successor corporation 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 to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an
Opinion of Counsel prepared in accordance with Section 11.5 as
conclusive evidence that any such consolidation, merger, sale,
transfer, 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 MONIES
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 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), as and when the same shall have become
due and payable, or (b) the Issuer shall have delivered to the
Trustee for cancellation all Securities of such series
theretofore authenticated and all unmatured Coupons appertaining
thereto (other than any Securities and Coupons appertaining
thereto of such series 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 (x) shall have become due and payable or (y) 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 monies repaid by the Trustee or
any paying agent to the Issuer in accordance with Section 10.4)
or specifically pledged as security for and dedicated solely to
the benefit of the Holders of the Securities of such series and
Coupons appertaining thereto, (x) cash in an amount, (y) 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
not later than one day before the due date of payments in respect
of the Securities, or (z) a combination thereof, sufficient
(without investment of such cash or reinvestment of any interest
or proceeds from such U.S. Government Obligations) in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay the principal of and interest on all Securities
of such series and Coupons appertaining thereto on each date that
such principal or interest is due and payable (whether at
maturity or through operation of a mandatory sinking fund other
than any redemption at the option of the Holder); and if, in any
such case, the Issuer shall also pay or cause to be paid all
other sums payable hereunder by the Issuer, all of the Securities
of such series and any Coupons appertaining thereto shall be
deemed paid and discharged and the provisions of this Indenture
with respect to such Securities and Coupons cease to be of
further effect (except as to (i) rights of registration of
transfer or exchange of Securities of such series or Coupons
appertaining thereto, and the Issuer's right of optional
redemption, if any, (ii) substitution of mutilated, defaced or
apparently destroyed, lost or stolen Securities or Coupons, (iii)
rights of the Holders of Securities and Coupons appertaining
thereto to receive from the property so deposited payments of
principal thereof and interest on the original stated due dates
therefor (but not upon acceleration) or the Redemption Date
therefor, as the case may be and remaining rights of Holders to
receive mandatory sinking fund payments, if any, (iv) the rights,
obligations and immunities of the Trustee hereunder, including
any right to compensation, reimbursement of expenses and
indemnification under Section 6.6, (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 Sections 3.2), and the Trustee,
on demand of the Issuer accompanied by an Officers' Certificate
and an Opinion of Counsel, which complies with Section 11.5,
stating that the provisions of this Section have been complied
with 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. In addition, in connection with the
satisfaction and discharge pursuant to clause (c)(i)(y) above,
the Trustee shall give notice to the Holders of Securities of
such satisfaction and discharge. 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,
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Issuer to the Trustee under
Section 6.6 shall survive.
(B) The following provisions shall apply to the
Securities of each series unless specifically otherwise provided
in a Board Resolution of the Issuer, Officers' Certificate of the
Issuer or indenture supplemental hereto provided pursuant to
Section 2.3. In addition to discharge of the Indenture pursuant
to Section 10.1(A), in the case of any such series of Securities
the exact or maximum amounts (including the currency of payment)
of principal and interest due on which can be determined at the
time of making the deposit referred to in Clause 10.1(B)(x)(a)
below: (x) the Issuer shall be deemed to have paid and
discharged the entire indebtedness on all Securities of such a
series and the Coupons appertaining thereto on the 91st day after
the date of the deposit referred to in Clause 10.1(B)(x)(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 or exchange of Securities of such series and Coupons
appertaining thereto and the Issuer's right of optional
redemption, if any, (ii) substitution of mutilated, defaced or
apparently destroyed, lost or stolen Securities or Coupons, (iii)
rights of Holders of Securities or Coupons appertaining thereto
to receive from the property so deposited payments of principal
thereof and interest thereon on the original stated due dates
therefor (but not on acceleration) or the Redemption Date
therefor, as the case may be, 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, including any right to compensation, reimbursement of
expenses and indemnification under Section 6.6, (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 and the rights of the Holders of
the Securities under Sections 3.2), (hereinafter "defeasance"),
and the Trustee, at the expense of the Issuer, shall at the
Issuer's request, execute proper instruments acknowledging the
same, if the Issuer notifies the Trustee that the provisions of
this Section 10.1(B) are being complied with solely to effect a
defeasance and 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 for the purpose of
making the following payments, 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 in Dollars, U.S. Government Obligations, maturing as
to principal and interest at such times and in such amounts
as will insure (without investment of such cash or
reinvestment of any interest or proceeds from such U.S.
Government Obligations) 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 the principal of and interest on all
Securities of such series and Coupons appertaining thereto
each date that such principal and interest is due and
payable (whether at maturity or upon redemption (through
operation of a mandatory sinking fund or otherwise) other
than any redemption at the option of the Holder);
(b) no Default or Event of Default or event which,
with notice or lapse of time or both, would become an Event
of Default with respect to the Securities of such series
shall have occurred and be continuing on the date of such
deposit or, insofar as Sections 5.1(d) and (e) are
concerned, at any time during the period ending on and
including the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed
satisfied until the expiration of such period);
(c) such defeasance shall not cause the Trustee to
have a conflicting interest for purposes of the Trust
Indenture Act of 1939 with respect to any securities of the
Issuer;
(d) such defeasance shall not result in a breach or
violation of, or constitute a Default under, this Indenture
or any Securities of such series;
(e) the Issuer has delivered to the Trustee an Opinion
of Counsel to the effect (i) that the Holders of the
Securities of such series and the Coupons appertaining
thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such defeasance and will
be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the
case if such defeasance had not occurred; and (ii) that the
trust arising from such deposit shall not constitute an
"investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the
Investment Company Act of 1940, as amended;
(f) the Issuer has paid or caused to be paid all other
sums then payable hereunder by the Issuer and the Issuer has
delivered to the Trustee an Officers' 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.
(C) The Issuer shall be released from its obligations
under Section 9.1 and any other covenants specified pursuant to
Section 2.3 with respect to the Securities of any series and any
Coupons appertaining thereto on and after the date the conditions
set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means
that, with respect to the outstanding Securities of the
applicable series, the Issuer may omit to comply with and shall
have no liability in respect of any term, condition or limitation
set forth in such Section or any such covenant, whether directly
or indirectly by reason of any reference elsewhere herein to such
Section or any such covenant or by reason of any reference in
such Section to any other provision herein or in any other
document and such omission to comply shall not constitute an
Event of Default under Section 5.1, but the remainder of this
Indenture and such Securities and Coupons shall be unaffected
thereby. The following shall be the conditions to application of
this subsection (C) of this Section 10.1:
(a) the Issuer has irrevocably deposited or caused to
be irrevocably deposited with the Trustee as trust funds in
trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of 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
payment 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 in an amount 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 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 (whether at
maturity or upon redemption (through operation of a
mandatory sinking fund or otherwise) other than any
redemption at the option of the Holder);
(b) no Default or Event of Default or event which with
notice or lapse of time or both would become an Event of
Default with respect to the Securities shall have occurred
and be continuing on the date of such deposit or, insofar as
subsections 5.1(d) and (e) are concerned, at any time during
the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period);
(c) such covenant defeasance 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;
(d) such covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section
310(b) of the Trust Indenture Act of 1939;
(e) such covenant defeasance shall not cause any
Securities then listed on any registered national securities
exchange to be delisted;
(f) the Issuer shall have delivered to the Trustee an
Opinion of Counsel to the effect (i) 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 covenant defeasance and
will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred; and
(ii) that the trust arising from such deposit shall not
constitute an "investment company" or an entity "controlled"
by an "investment company" as such terms are defined in The
Investment Company Act of 1940, as amended; and
(g) the Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each
stating that all conditions precedent relating to the
covenant 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 monies and
securities 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 monies or securities have
been deposited with the Trustee, of all sums due and to become
due thereon for principal and interest; but such monies or
securities need not be segregated from other funds except to the
extent required by law.
SECTION 10.3 Repayment of Monies Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture
with respect to the Securities of any series, all monies then
held by any paying agent under the provisions of this Indenture
with respect to such series 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 monies.
SECTION 10.4 Return of Monies Held by Trustee and Paying
Agent Unclaimed for Two Years. Any monies or U.S. Government
Obligations deposited with or paid to the Trustee or any paying
agent for the payment of the principal of and 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 and 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
monies shall thereupon cease; provided, however, that the Trustee
or such paying agent, before being required to make any such
repayment with respect to monies 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 for such purpose
within two years preceding the giving of such notice, 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
City of New York and once in an Authorized Newspaper in London
(and, if required by Section 3.7, at least once in an Authorized
Newspaper in Luxembourg) notice, that such monies 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 Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No
recourse shall be had for the payment of the principal of, or
interest on any Security or any Coupon appertaining thereto, for
any claim based thereon, or otherwise in respect thereof, or
based on or in respect of this Indenture or any indenture
supplement thereto, against any incorporator, stockholder,
officer or director, as such, past, present or future, of the
Issuer or any successor corporation, either directly or through
the Issuer, or any successor corporation, whether by virtue of
constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by
the acceptance of such Security and any Coupons appertaining
thereto and as part of the consideration for the issue thereof,
expressly waived and released.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders. Nothing in this Indenture or in the
Securities or in Coupons appertaining thereto, expressed or
implied, shall give or be construed to give to any Person, 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 the Holders of the Securities or Coupons, if any.
SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture. All covenants and agreements in this Indenture by the
Issuer shall bind its successors and assigns (whether by merger,
consolidation or otherwise), whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, the Trustee and
Securityholders. Any notice or demand which by any provision of
this Indenture is required or permitted to be given or served by
the Trustee or by the Holders of Securities 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
Copper & Gold Inc., 1615 Poydras Street, New Orleans, Louisiana
70112, Attention: Corporate Secretary. Any notice, direction,
request or demand by the Issuer or any Securityholder to or upon
the Trustee shall be deemed to have been sufficiently given or
made, for all purposes, if given or made at the Corporate Trust
Office, 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, notice shall be (i) mailed to those
Holders of Unregistered Securities who have filed their names and
addresses for this purpose with the Trustee within the two years
preceding giving such notice, with such notice being 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 and
(ii) published at least once in an Authorized Newspaper in the
City of New York, and at least once in an Authorized Newspaper in
London (and, if required by Section 3.7, at least once in an
Authorized Newspaper in Luxembourg). 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 and Securityholders 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 satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice.
SECTION 11.5 Officers' Certificate and Opinions of Counsel,
Statements to Be Contained Therein. Upon any application or
demand by the Issuer to the Trustee to take any action under any
of the provisions of this Indenture, the Issuer shall furnish to
the Trustee an Officers' Certificate stating that all conditions
precedent 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.
Except as provided in Sections 3.5 and 12.5, 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 providing such opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based, (c)
a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with and (d) a statement as to
whether or not, in the opinion of such Person, such condition or
covenant has been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon
a certificate or opinion of or representations by counsel, unless
such officer knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion 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
Issuer upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer unless
such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of or
representations by an accountant or firm of accountants in the
employ of the Issuer unless such officer or counsel, as the case
may be, knows that the certificate or opinion or representations
with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, 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 Security
shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or of the Securities of such series)
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 hereof limits,
qualifies or conflicts with the duties imposed by any of Sections
310 through 317, inclusive, of the Trust Indenture Act of 1939 or
with another provision hereof which is required to be included by
any of Section 310 through 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 shall each 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 said 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 11.10Effect 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 11.11Securities in a Foreign Currency or in ECU.
Unless otherwise specified in an Officers' 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 11.12Judgment 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. Notice of redemption to
the Holders of Registered Securities to be redeemed as a whole or
in part at the option of the Issuer shall be given in the manner
provided in Section 11.4, at least 30 days and not more than 60
days prior to the date fixed for redemption to such Holders of
Securities. Any notice to be given by publication in an
Authorized Newspaper or Newspaper shall, in each case, be
published 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 Redemption Date, the applicable
Redemption Price, and, if the Redemption Price was required to be
calculated accordingly, or 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 a mandatory or optional sinking fund,
or both, if such be the case, that interest accrued to the
Redemption Date will be paid as specified in said notice and that
on and after said Redemption 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.
At least one Business Day prior to the Redemption Date
specified in the notice of redemption given as provided in this
Section, the Issuer will deposit with the Trustee or with one or
more paying agents (or, if the Issuer is acting as its own paying
agent, 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 to be redeemed
at the appropriate Redemption Price, together with accrued
interest to and including the Redemption Date. If less than all
Securities of any series are to be redeemed, the Issuer will
deliver to the Trustee at least 70 days prior to the Redemption
Date an Officers' 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 Officers' 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
provisions relating to the redemption of Securities of any series
shall relate, in the case of any Security redeemed or to be
redeemed only in part, to the portion of the principal amount of
such Security which has been or is to be redeemed. In case of a
redemption at the election of the Issuer prior to the expiration
of any restriction on such redemption, the Issuer shall deliver
to the Trustee, prior to the giving of any notice of redemption
to Holders pursuant to this Section, an Officers' Certificate
stating that such restriction has been complied with.
SECTION 12.3 Payment of Securities Called for Redemption. If
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 Redemption Date and at the
place stated in such notice at the applicable Redemption Price,
together with interest accrued to and including the Redemption
Date, and on and after said Redemption Date (unless the Issuer
shall default in the payment of such Securities at the Redemption
Price, together with interest accrued to said Redemption 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 such Securities
shall cease from and after the Redemption Date to be entitled to
any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities to be
redeemed except the right to receive the applicable Redemption
Price thereof and unpaid interest to and including the Redemption
Date. On surrender of such Securities at a place of payment
specified in said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such
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 and including the
Redemption Date; provided that any payment of interest becoming
due on or prior to the Redemption Date 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, registered as such on the
relevant Regular 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 Redemption Date
at the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in 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 surrender 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 for such series, of
authorized denominations, in principal amount equal to the
unredeemed portion of the Security so prescribed.
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
Officers' Certificate of the Issuer 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 Officers' 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 Officers'
Certificate (or reasonably promptly thereafter if acceptable to
the Trustee). Such Officers' 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 or cause to be delivered
such Officers' 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 and subject to the
limitations in Section 12.4, 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 monies 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 monies, 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 monies 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 monies in the sinking fund
for such series at the time when any such default or Event of
Default shall occur, and any monies 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 monies
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 their respective corporate
seals to be hereunto affixed and attested, all as of
______________________, 1996.
FREEPORT-McMoRan Copper & Gold Inc.
By: _______________________________
Name:
Title:
[CORPORATE SEAL]
Attest:
By: _____________________________
Name:
Title:
____________________________,
as Trustee
By: ___________________________
Name:
Title:
[CORPORATE SEAL OF TRUSTEE]
Attest:
By: ________________________________
Name:
Title:
STATE OF LOUISIANA
PARISH OF ORLEANS
On this _____ day of _________________, 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 a ______________________ of Freeport-
McMoRan Copper & Gold Inc., one of the corporations described in
and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
authority of the board of Directors of said corporation, and that
he signed his name thereto by like authority.
[NOTARIAL SEAL]
______________________________
Notary Public
STATE OF NEW YORK
COUNTY OF NEW YORK
On this _____ day of _____________________, 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 a _____________ of
________________, one of the corporations described in and which
executed the above instrument; that he knows the corporate seal
of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his
name thereto by like authority.
[NOTARIAL SEAL]
___________________________
Notary Public
Exhibit 4.3
FREEPORT-McMoRAN COPPER & GOLD INC., Issuer
and
_______________________, Trustee
SUBORDINATED
INDENTURE
Dated as of _____________________, 1996
<PAGE>
TABLE OF CONTENTS
Page
PARTIES........................................................1
RECITALS.......................................................1
ARTICLE ONE - DEFINITIONS
SECTION 1.1
Certain Terms Defined.................................... 1
Authenticating Agent..................................... 1
Authorized Newspaper..................................... 2
Authorized Signatory..................................... 2
Board of Directors....................................... 2
Board Resolution......................................... 2
Business Day............................................. 2
Commission............................................... 2
Company Order............................................ 2
Corporate Trust Office................................... 2
Coupon................................................... 2
Debt..................................................... 2
Default.................................................. 2
Defeasance............................................... 2
Depositary............................................... 3
Dollar................................................... 3
ECU...................................................... 3
Event of Default......................................... 3
Exchange Act............................................. 3
Foreign Currency......................................... 3
Guarantee................................................ 3
Holder, Holder of Securities, Securityholder............. 3
Indebtedness............................................. 3
Indenture................................................ 4
Insolvency Law........................................... 4
Interest................................................. 4
Interest Payment Date.................................... 4
Issuer................................................... 4
Judgment Currency........................................ 4
Officers' Certificate.................................... 4
Opinion of Counsel....................................... 4
original issue date...................................... 4
Original Issue Discount Security......................... 4
Outstanding.............................................. 5
Periodic Offering........................................ 5
Person................................................... 5
principal................................................ 5
Redemption Date.......................................... 5
Redemption Price......................................... 5
Registered Global Security............................... 6
Registered Security...................................... 6
Regular Record Date...................................... 6
Required Currency........................................ 6
Responsible Officer...................................... 6
Securities Act........................................... 6
Security or Securities................................... 6
Security Registrar....................................... 6
Senior Indebtedness...................................... 6
Stated Maturity.......................................... 6
Trade Payables........................................... 7
Trust Indenture Act of 1939.............................. 7
Trustee.................................................. 7
Unregistered Security.................................... 7
U.S. Government Obligations.............................. 7
Yield to Maturity........................................ 7
ARTICLE TWO - ISSUE, EXECUTION, FORM AND REGISTRATION OF
SECURITIES
SECTION 2.1 Forms Generally................................ 7
SECTION 2.2 Form of Trustee's Certificate of
Authentication................................. 7
SECTION 2.3 Amount Unlimited; Issuable in Series........... 8
SECTION 2.4 Authentication and Delivery of
Securities.....................................11
SECTION 2.5 Execution of Securities........................13
SECTION 2.6 Certificate of Authentication..................14
SECTION 2.7 Denomination and Date of Securities;
Payments of Interest...........................14
SECTION 2.8 Registration, Transfer and Exchange............15
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost
and Stolen Securities..........................18
SECTION 2.10 Cancellation of Securities;
Disposition Thereof............................19
SECTION 2.11 Temporary Securities...........................19
ARTICLE THREE - COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest..............20
SECTION 3.2 Offices for Payments, etc......................20
SECTION 3.3 Appointment to Fill a Vacancy in
Office of Trustee..............................22
SECTION 3.4 Paying Agents..................................22
SECTION 3.5 Written Statement to Trustee...................22
SECTION 3.6 Corporate Existence............................23
SECTION 3.7 Luxembourg Publications........................23
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...................23
SECTION 4.2 Preservation and Disclosure of
Securityholders' Lists.........................23
SECTION 4.3 Reports by the Issuer..........................24
SECTION 4.4 Reports by the Trustee.........................24
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 .......................................24
SECTION 5.2 Collection of Debt by Trustee;
Trustee May Prove Debt.........................28
SECTION 5.3 Application of Proceeds........................29
SECTION 5.4 Suits for Enforcement..........................30
SECTION 5.5 Restoration of Rights on Abandonment
of Proceedings.................................30
SECTION 5.6 Limitations on Suits by
Securityholders................................30
SECTION 5.7 Unconditional Right of
Securityholders to Institute Certain
Suits..........................................31
SECTION 5.8 Powers and Remedies Cumulative; Delay
or Omission Not Waiver of Default..............31
SECTION 5.9 Control by Securityholders.....................32
SECTION 5.10 Waiver of Past Defaults........................32
SECTION 5.11 Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances..................................32
SECTION 5.12 Right of Court to Require Filing of
Undertaking to Pay Costs.......................33
ARTICLE SIX - CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the
Trustee; During Default; Prior to
Default........................................33
SECTION 6.2 Certain Rights of the Trustee..................34
SECTION 6.3 Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof................35
SECTION 6.4 Trustee and Agents May Hold
Securities or Coupons; Collections,
etc............................................35
SECTION 6.5 Monies Held by Trustee.........................36
SECTION 6.6 Compensation and Indemnification of
Trustee and Its Prior Claim....................36
SECTION 6.7 Right of Trustee to Rely on Officers'
Certificate, etc...............................36
SECTION 6.8 Persons Eligible for Appointment as
Trustee........................................37
SECTION 6.9 Resignation and Removal; Appointment
of Successor Trustee...........................37
SECTION 6.10 Acceptance of Appointment by
Successor Trustee..............................38
SECTION 6.11 Merger, Conversion, Consolidation or
Succession to Business of Trustee..............39
SECTION 6.12 Preferential Collection of Claims
Against the Issuer.............................40
SECTION 6.13 Appointment of Authenticating Agent............40
ARTICLE SEVEN - CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by
Securityholders................................41
SECTION 7.2 Proof of Execution of Instruments and
of Holding of Securities.......................41
SECTION 7.3 Holders to be Treated as Owners................42
SECTION 7.4 Securities Owned by Issuer Deemed Not
Outstanding....................................42
SECTION 7.5 Right of Revocation of Action Taken............43
SECTION 7.6 Record Date for Consents and Waivers...........43
ARTICLE EIGHT - SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without
Consent of Securityholders.....................44
SECTION 8.2 Supplemental Indentures With Consent
of Securityholders.............................45
SECTION 8.3 Effect of Supplemental Indenture...............47
SECTION 8.4 Documents to Be Given to Trustee...............47
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures.......................47
ARTICLE NINE - CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant of the Issuer Not to Merge,
Consolidate, Sell or Convey Property
Except Under Certain Conditions................47
SECTION 9.2 Successor Entity Substituted...................48
SECTION 9.3 Opinion of Counsel to Trustee..................48
ARTICLE TEN - SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONIES
SECTION 10.1 Satisfaction and Discharge of
Indenture......................................48
SECTION 10.2 Application by Trustee of Funds
Deposited for Payment of Securities............52
SECTION 10.3 Repayment of Monies Held by Paying
Agent..........................................53
SECTION 10.4 Return of Monies Held by Trustee and
Paying Agent Unclaimed for Two Years...........53
SECTION 10.5 Indemnity for U.S. Government
Obligations....................................53
ARTICLE ELEVEN - MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability...........................54
SECTION 11.2 Provisions of Indenture for the Sole
Benefit of Parties and
Securityholders................................54
SECTION 11.3 Successors and Assigns of Issuer
Bound by Indenture.............................54
SECTION 11.4 Notices and Demands on Issuer, the
Trustee and Securityholders....................54
SECTION 11.5 Officers' Certificates and Opinions
of Counsel, Statements to Be
Contained Therein..............................55
SECTION 11.6 Payments Due on Saturdays, Sundays
and Legal Holidays.............................56
SECTION 11.7 Conflict of Any Provision of
Indenture with Trust Indenture Act of
1939...........................................56
SECTION 11.8 New York Law to Govern.........................56
SECTION 11.9 Counterparts...................................56
SECTION 11.10 Effect of Headings............................56
SECTION 11.11 Securities in a Foreign Currency or in ECU... 56
SECTION 11.12 Judgment Currency.............................57
ARTICLE TWELVE - REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Application of Article.........................58
SECTION 12.2 Notice of Redemption...........................58
SECTION 12.3 Payment of Securities Called for
Redemption.....................................59
SECTION 12.4 Exclusion of Certain of Securities
from Eligibility for Selection for
Redemption.....................................60
SECTION 12.5 Mandatory and Optional Sinking Funds...........60
ARTICLE THIRTEEN - SUBORDINATION
SECTION 13.1 Agreement to Subordinate.......................62
SECTION 13.2 Payments to Securityholders....................62
SECTION 13.3 Subrogation....................................64
SECTION 13.4 Authorization by Securityholders...............65
SECTION 13.5 Notice to Trustee..............................65
SECTION 13.6 Trustee's Relation to Senior
Indebtedness...................................66
SECTION 13.7 No Impairment of Subordination.................66
TESTIMONIUM...................................................67
SIGNATURES AND SEALS..........................................67
ACKNOWLEDGEMENTS..............................................68
<PAGE>
CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture Act of 1939, as amended, and the
Indenture to be dated as of ___________________, 1996 between
Freeport-McMoRan Copper & Gold Inc. and ____________________, as
Trustee:
Section of the Act Section of Indenture
310(a)(1), (2) and (5)........................................6.8
310(a)(3) and (4)....................................Inapplicable
310(b)........................................6.9(a), (b) and (d)
310(c)...............................................Inapplicable
311(a) and (b)...............................................6.12
311(c)...............................................Inapplicable
312(a).............................................4.1 and 4.2(a)
312(b).....................................................4.2(b)
312(c).....................................................4.2(c)
313(a).....................................................4.4(a)
313(a)(5)..................................................4.4(b)
313(b).....................................................4.4(b)
313(c) ....................................................4.4(c)
313(d).....................................................4.4(d)
314(a)................................................3.5 and 4.3
314(b)...............................................Inapplicable
314(c).......................................................11.5
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
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
318(a).......................................................11.7
*This Cross Reference Sheet is not part of the Indenture.
<PAGE>
THIS INDENTURE, dated as of __________________________, 1996
by and between Freeport-McMoRan Copper & Gold Inc. (the
"Issuer"), a Delaware corporation, and ____________________, a
______________________ corporation, as trustee (the "Trustee"),
WITNESSETH:
WHEREAS, the Issuer has duly authorized the issue from time
to time of its unsecured subordinated 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 by 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 of the Issuer and the Trustee, 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 are defined in the Securities Act and referred to
in the Trust Indenture Act of 1939 (except as herein otherwise
expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in the Trust
Indenture Act of 1939 and in the Securities Act as in force at
the date of this Indenture. All accounting terms used herein and
not expressly defined shall have the meanings given to them in
accordance with generally accepted accounting principles, and the
term "generally accepted accounting principles" shall mean
generally accepted accounting principles in the United States
which are in effect on the date or time of any determination.
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 include the plural as well as the
singular.
"Authenticating Agent" shall have the meaning set forth
in Section 6.13.
"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 London, 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, London or 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.
"Authorized Signatory" means any of the chairman of the
Board of Directors, the president, any vice president (whether or
not designated by a number or numbers or a word or words added
before or after the title "Vice President"), the treasurer or any
assistant treasurer or the secretary or any assistant secretary
of any Person.
"Board of Directors" of any Person means the Board of
Directors of the Issuer, or any committee of such Board duly
formed and authorized to act on its behalf.
"Board Resolution" means a copy of one or more
resolutions, certified by the secretary or an assistant secretary
of the Issuer 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 a Security, a day
that in the city (or in any cities, if more than one) in which
amounts are payable, as specified in the form of such Security,
which is not a day on which banking institutions and trust
companies are authorized by law or regulation or executive order
to close.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, 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, the
body performing such duties on such date.
"Company Order" means a written statement, request or
order of the Issuer which is signed in the Issuer's name by the
chairman of the Board of Directors, the president, any executive
vice president, any senior vice president or any vice president
of the Issuer.
"Corporate Trust Office" means the office of the
Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered, which
office is, at the date as of which this Indenture is dated,
located at ____________________________________________.
"Coupon" means any interest coupon appertaining to a
Security.
"Debt" shall have the meaning set forth in Section 5.1.
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"Defeasance" shall have the meaning set forth in
Section 10.1.
"Depositary" means, with respect to the Securities of
any series issuable or issued in whole or in part in the form of
one or more Registered Global Securities, the Person designated
as the 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; provided that any
Person that is a Depositary hereunder must be a clearing agency
registered under the Exchange Act.
"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.
"Exchange Act" means the Securities and Exchange Act of
1934, as amended.
"Foreign Currency" means a currency issued by the
government of a country other than the United States.
"Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person directly or indirectly
guaranteeing any Indebtedness or other obligation of any other
Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation
(whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement
conditions or otherwise), or (ii) entered into for the purpose of
assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part),
provided that the term Guarantee shall not include endorsements
for collection or deposit in the ordinary course of business.
The term "Guarantee" as used as a verb has a corresponding
meaning.
"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" of any Person means at any date, without
duplication (i) all obligations of such Person for borrowed
money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all
obligations of such Person in respect of letters of credit or
other similar instruments (or reimbursement obligations with
respect thereto), (iv) all obligations of such Person to pay the
deferred purchase price of property or services, except Trade
Payables, (v) all obligations of such Person as a lessee under
capital leases, (vi) all Indebtedness of others secured by a lien
on any asset of such Person, whether or not such Indebtedness is
assumed by such Person, (vii) all Indebtedness of others
Guaranteed by such Person.
"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.
"Insolvency Law" means any applicable bankruptcy,
insolvency, reorganization or similar law in any applicable
jurisdiction.
"Interest" means, when used with respect to non-
interest bearing Securities, interest payable after maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"Issuer" means Freeport-McMoRan Copper & Gold Inc., a
Delaware corporation and, subject to Article Nine, its successors
and assigns.
"Judgment Currency" shall have the meaning set forth in
Section 11.12.
"Officers' Certificate" means a certificate signed by
the chairman of the board or the president or any vice president
(whether or not designated by a number or numbers or a word or
words added before or after the title "Vice President") and by
the treasurer or any assistant treasurer or the secretary or any
assistant secretary and delivered to the Trustee. Each such
certificate shall include the statements provided for in Section
11.5, if and to the extent required hereby.
"Opinion of Counsel" means an opinion in writing signed
by legal counsel, who may be an employee of or counsel to the
Issuer or such other legal counsel who may be satisfactory to the
Trustee. Each such opinion shall include the statements provided
for in Section 11.5, if and to the extent required hereby.
"original issue date" of any Security (or portion
thereof) means the earlier of (a) the Issue Date of such Security
or (b) the Issue Date of any Security (or portion thereof) for
which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution. For purposes
of this definition, "Issue Date" means the date of issue of any
series of Securities under this Indenture as more specifically
stated on the reverse of such Securities.
"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", when used with reference to Securities
of any series issued hereunder, shall, subject to the provisions
of Section 7.4, mean, as of any particular time, all Securities
of such series 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 monies 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 (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 Stated 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;
(c) Securities which shall have been paid or in
substitution for which other Securities shall have been
authenticated and delivered, or which shall have been paid,
pursuant to the terms of Section 2.9 (unless proof
satisfactory to the Trustee is presented that any of such
Securities is held by a Person in whose hands such Security
is a legal, valid and binding obligation of the Issuer); and
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, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"principal" whenever used with reference to the
Securities of any series or any portion thereof, shall be deemed
to include "and premium, if any".
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
"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, which Security shall be
without Coupons.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Registered Securities of any series
means the date specified for that purpose as contemplated by
Section 3.1, or if no such date is 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 Regular Record
Date is a Business Day.
"Required Currency" shall have the meaning set forth in
Section 11.12.
"Responsible Officer", when used with respect to the
Trustee means the Chairman of the Board of Directors, the
President, the Secretary, the Treasurer, or any other officer of
the Trustee customarily performing corporate trust functions.
"SEC Reports" shall have the meaning set forth in
Section 4.3.
"Securities Act" means the Securities Act of 1933, as
amended.
"Security" or "Securities" has the meaning stated in
the first recital of this Indenture and more particularly means
any Securities of any series, authenticated and delivered under
this Indenture.
"Security Registrar" means the Trustee or any successor
Security Registrar appointed by the Issuer.
"Senior Indebtedness" means all Indebtedness of the
Issuer (other than the Securities) including principal and
interest (including, without limitation, any interest that would
accrue but for the filing of a petition initiating any proceeding
referred to in Section 13.2 hereof) on such Indebtedness,
created, incurred or assumed on or after the date of the first
issuance of any Securities, unless such Indebtedness, by its
terms or the terms of the instrument creating or evidencing it,
is subordinate in right of payment to, or pari passu with, the
Securities; provided, that the term Senior Indebtedness shall not
include (a) any Indebtedness of the Issuer which, when incurred
and without respect to any election under Section 1111(b) of
Title 11, United States Code, with or without recourse to the
Issuer, (b) any Indebtedness of the Issuer to an affiliate of the
Issuer and any refinancing thereof, (c) Indebtedness to any
employee of the Issuer and (d) Trade Payables.
"Stated Maturity" means, with respect to any Security,
the date specified in such Security as the fixed date on which
the principal of such security is due and payable, including
pursuant to any mandatory redemption provision (but excluding any
provision providing for the repurchase of such security at the
option of the Holder thereof upon the happening of any
contingency unless such contingency has occurred) and with
respect to any installment of interest upon such Security, the
date specified in such Security, or Coupon appertaining thereto,
if applicable as the fixed date on which such installment of
interest is due and payable.
"Trade Payables" means accounts payable for any other
indebtedness or monetary obligations to trade creditors created
or assumed by the Issuer or any subsidiary of the Issuer in the
ordinary course of business in connection with the obtaining of
materials or services.
"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 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 the issuance of
such series, or, if applicable, at the most recent
redetermination of interest on such series, and calculated in
accordance with generally accepted financial practice.
ARTICLE TWO
ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series
and the Coupons, if any, issued hereunder shall be substantially
in such form and bear such legends (not inconsistent with this
Indenture) as shall be established by or pursuant to one or more
Board Resolutions of the Issuer (as set forth in a Board
Resolution or, to the extent established pursuant to rather than
set forth in a Board Resolution, an Officers' Certificate detail-
ing 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, if
any. If temporary Securities are issued as permitted by Section
2.11, the form thereof also shall be established as provided in
the preceding sentence.
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 Subordinated
Indenture.
____________________________,
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 Subordinated
Indenture.
______________________________,
Trustee
By:
As Authenticating Agent
By:
Authorized Officer
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 the Securities
of each other series, but all Securities hereunder shall be
subordinate and junior in right of payment, to the extent and
manner set forth in Article 13, to all Senior Indebtedness 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 Officers'
Certificate detailing such establishment) or 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 12.2);
(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, the Interest Payment Date
on which any such interest shall be payable and (in the case
of Registered Securities) the Regular Record Date for any
interest payable on any Interest Payment Date and/or the
method by which such rate or rates or Regular Record Date or
Dates shall be computed or determined;
(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 of the series, 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, in whole or in
part, 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, the period or
periods within which and the manner in which (if different
from the provisions of Article 12 hereof) 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 and the manner in which the
exchange rate with respect to such payments shall be
determined;
(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 (without Coupons) (and if
so, whether such Securities will be issuable as Registered
Global Securities and, if so, the Depositary therefor and
the form of any legend in addition or in lieu of that in
Section 2.4 to be borne by such Registered Global Security)
or Unregistered Securities (with or without Coupons), or any
combination of the foregoing, any restrictions or procedures
applicable to the offer, sale or delivery of Unregistered
Securities or the payment of interest thereon, if other than
as provided in Section 2.8, and the terms upon which
Unregistered Securities of any series may be exchanged for
Registered Securities of such series and vice versa, if
other than as provided in Section 2.8;
(15) whether and under what circumstances the Issuer
will pay additional amounts on the Securities of the series
to Holders, or certain Holders, thereof 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 (and the terms of any such option);
(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, depositaries authenticating or
paying agents, transfer agents or registrars or any other
agents with respect to the Securities of such series;
(18) any deletions from, modifications of or additions
to the Events of Default or covenants set forth herein
(including any defined terms relating thereto);
(19) the term and condition, upon which and the manner
in which Securities of the series may be defeased or
defeasible if different from the provisions of Article 10;
(20) whether the Securities will be issued as global
Securities and, if other than as provided in Section 2.8,
the terms upon which such global securities may be exchanged
for definitive securities;
(21) offices at which presentation and demands may be
made and notices be served, if other than the Corporate
Trust Office;
(22) 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 appertaining
thereto, if any, 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 Officers' 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 Officers'
Certificate or in any such indenture supplemental hereto.
SECTION 2.4 Authentication and Delivery of Securities.
Upon the execution and delivery of this Indenture, or from time
to time thereafter, Securities, including Coupons appertaining
thereto, if any, may be executed by the Issuer and delivered 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 and
Coupons appertaining thereto, if any, to or upon the order of the
Issuer (contained in the Company 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 a
Company Order, without any further action by the Issuer. 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
Company Order or procedures authorized by such Company Order. If
provided for in such procedures, such Company Order may authorize
authentication and delivery of Securities 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) a Company 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 Company 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 a Company Order or
pursuant to procedures acceptable to the Trustee as may be
specified from time to time by a Company Order, (c) the
maturity date or dates, original issue date or dates or
interest rate or rates and any other terms of Securities of
such series shall be determined by a Company Order or
pursuant to such procedures and (d) if provided for in such
procedures, such Company Order may authorize authentication
and delivery of Securities pursuant to oral or electronic
instructions from the Issuer or its duly authorized agent or
agents, which oral or electronic 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, Officers' 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 Officers' Certificate setting forth the form or
forms and terms of the Securities 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 Officers'
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 a
Company 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 the 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 that is material to the Issuer or, to the best
of such counsel's knowledge but without any independent
investigation, any judgment, order or decree of any
governmental body, agency or court having jurisdiction
over the Issuer 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 upon opinions of other counsel
(copies of which shall be delivered to the Trustee), who shall be
counsel reasonably satisfactory 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 any of 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
all or a portion of 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 2.4 and the Company 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 or a
portion of the Securities of such series issued and not yet
cancelled or exchanged 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 a nominee thereof or a custodian
therefor or pursuant to such Depositary's instructions and (iv)
shall bear a legend substantially to the following effect: "This
Security is a Registered Global Security within the meaning of
the Indenture hereinafter referred to and is registered in the
name of a Depositary or a nominee thereof. This Security may not
be exchanged in whole or in part for a Security registered, and
no transfer of this Security in whole or in part may be
registered in the name of any Person other than such Depositary
or a nominee thereof, except in the limited circumstances
described in the Indenture."
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 (whether or not
designated by a number or numbers or a word or words added before
or after the title "Vice President") or the Treasurer of the
Issuer, under its corporate seal (except in the case of Coupons)
which may, but need not be, attested. Such signature may be the
manual or facsimile signature of the present or any future such
chairman or officers. The corporate seal of the Issuer may be in
the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities.
Typographical and other minor errors or defects in any such
reproduction of any such signature shall not affect the validity
or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any
of the Securities or Coupons, if any, shall cease to be such
officer before the Security or Coupon so signed 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
Issuer; and any Security or Coupon may be signed on behalf of the
Issuer by such Person as, at the actual date of the execution of
such Security or Coupon, shall be the proper officer of the
Issuer, although at the date of the execution and delivery of
this Indenture any such Person was not such officer.
SECTION 2.6 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication
substantially in the form set forth in Section 2.2, 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. Such certificate by the
Trustee upon any Security executed by the Issuer shall be
conclusive evidence that the Security and Coupons, if any,
appertaining thereto so authenticated have 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 Issuer 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 Board Resolution or Resolutions or
indenture supplemental hereto referred to in Section 2.3, or, if
not so specified, each such Unregistered Security shall be dated
as of the date of issuance of the first Unregistered Security of
such series to be issued. The Securities of each series shall
bear interest, if any, from the date, and such interest shall be
payable on the Interest Payment 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 Regular
Record Date applicable to such 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 such Regular Record Date and prior to such
Interest Payment Date, except in the case of any such transfer or
exchange 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 then
cease to be payable to the Holder on such Regular Record Date by
virtue of having been such Holder and 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. Interest on any
Unregistered Securities which is payable, and punctually paid or
duly provided for, on any Interest Payment Date shall be paid to
the Holder of such Unregistered Security or of the applicable
Coupon appertaining to such Unregistered Security
SECTION 2.8 Registration, Transfer and Exchange. The
Issuer will cause to be kept at each 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 surrender for registration of transfer of any
Registered Security of any series at any such office or agency to
be maintained for the purpose 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 such series, in any
authorized denominations and of a like aggregate principal amount
and tenor.
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, any Security may be
exchanged for a Security of the same series, of like tenor, in
authorized denominations and in an equal aggregate principal
amount upon surrender of such Security at an office or agency to
be maintained for such purpose in accordance with Section 3.2 or
as specified pursuant to Section 2.3, and the Issuer shall
execute, and the Trustee shall authenticate and deliver in
exchange therefor, the Security or Securities which the Holder
making the exchange shall be entitled to receive bearing a number
or other distinguishing symbol not contemporaneously outstanding.
Subject to the foregoing, (i) a Registered Security of any series
(other than a Registered Global Security, except as set forth
below) may be exchanged for a Registered Security or Securities
of the same series; (ii) if the Securities of any series are
issued in both registered and unregistered form, except as
otherwise specified pursuant to Section 2.3, Unregistered
Securities may be exchanged for a Registered Security or
Securities of the same series, but a Registered Security may not
be exchanged for an Unregistered Security or Securities; and
(iii) if Unregistered Securities of any series are issued in more
than one authorized denomination, except as otherwise specified
pursuant to Section 2.3, any such Unregistered Security or
Securities may be exchanged for an Unregistered Security or
Securities of the same series; provided that in connection with
the surrender of any Unregistered Securities that have Coupons
attached, all unmatured Coupons and all matured Coupons in
default must be surrendered with the Securities being exchanged.
If the Holder of an Unregistered Security is unable to produce
any such unmatured Coupon or Coupons or matured Coupon or Coupons
in default, such exchange may be effected if the Unregistered
Securities are accompanied by payment in funds acceptable to the
Issuer in an amount equal to the face amount of such missing
Coupon or Coupons, or the surrender of such missing Coupon or
Coupons may be waived by the Issuer and the Trustee if there is
furnished to them such security or indemnity as they may require
to save each of them and any paying agent harmless. If
thereafter the Holder of such Security shall surrender to any
paying agent any such missing Coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to
receive from the Issuer the amount of such payment; provided,
however, that, except as otherwise provided in Section 3.2,
interest represented by Coupons shall be payable only upon the
presentation and surrender of those Coupons and an office or
agency located outside the United States. Notwithstanding the
foregoing, in case an Unregistered Security of any series is
surrendered at any such office or agency in exchange for a
Registered Security of the same series in like tenor after the
close of business at such officer agency on (i) any Regular
Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any
subsequent record date and the before the opening of business at
such office or agency on such subsequent date for the payment of
interest in default, such Unregistered Security shall be
surrendered without the Coupon relating to such Interest Payment
Date or subsequent date for payment, as the case may be, and
interest or in interest in default, as the case may be, will not
be payable on such Interest Payment Date or subsequent date for
payment, as the case may be, in respect of the Registered
Security issued in exchange for such Unregistered Security, but
will be payable only to the Holder of such Coupon when due in
accordance with the provisions of this Indenture. 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 dis-
position thereof to the Issuer.
All Registered Securities presented for registration of
transfer, exchange, redemption, repurchase 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 the 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 (a) to issue, register the
transfer of or exchange any Securities of any series for a period
of 15 days next preceding the first mailing of notice of
redemption of Securities of such series to be redeemed, (b) to
register the transfer of or exchange 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, (c) to register the transfer of or
exchange 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, or (d) to exchange any Unregistered
Security so selected for redemption, except that such
Unregistered Security may be exchanged for a Registered Security
of that series and like tenor, provided that such Registered
Security shall be simultaneously surrendered for redemption.
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 and the
Issuer thereupon fails to appoint a successor Depositary 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 Officers' 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, of like tenor, 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 Officers' 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 foregoing (any of which, other than
the Issuer, shall rely on an Officers' 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 apparently destroyed, lost or stolen, the Issuer in
its discretion may execute, and upon the written request of any
officer of the Issuer, the Trustee shall authenticate and deliver
a new Security of the same series, of like tenor and in equal
aggregate principal amount, 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 substitution for the Security so apparently
destroyed, lost or stolen and, if applicable, with Coupons
corresponding to the Coupons appertaining to the Securities for
which substitutes are being issued. 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 apparent destruction, loss or theft, evidence to
their satisfaction of the apparent destruction, loss or theft of
such Security or Coupon and of the ownership thereof. In the
case of a mutilated or defaced Security or Coupon, the applicant
for a substitute Security or Coupon shall surrender such
mutilated or defaced Security or Coupon 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 apparently destroyed, lost or stolen, the Issuer
may, instead of issuing a substitute Security or Coupon, 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 from all risks, however
remote, and, in every case of apparent 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 apparent destruction, loss or theft of
such Security 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 apparently destroyed, lost or
stolen shall constitute an additional contractual obligation of
the Issuer, whether or not the apparently 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 or 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 apparently
destroyed, lost or stolen Securities and Coupon 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,
repurchase, 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 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 unless the Issuer shall direct that cancelled
Securities be returned to it. If the Issuer 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 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 3.2, 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
issued hereunder 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 with
respect to such Securities) at the place or places, at the
respective times and in the manner provided in the Securities of
such series 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 with
respect to such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such
interest installments 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 Securities) shall be paid, as to the installments
of interest evidenced by Coupons attached thereto, 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 entitled thereto 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 remain Outstanding, the Issuer will maintain in
the Borough of Manhattan, The City of New York, an office or
agency where the Registered Securities of each series may be
surrendered for payment and where the Registered Securities of
each series may be surrendered for registration of transfer or
exchange as is provided in this Indenture.
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 office or 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 surrendered for payment or exchange.
No payment or exchange of any Unregistered Security or Coupon
will be made upon surrender of such Unregistered Security or
Coupon at an office or 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 Borough of Manhattan, 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 prompt written notice of
the location of any such office or agency and of any change of
location thereof. The Issuer hereby initially designates the
Corporate Trust Office of the Trustee maintained in the City of
New York as the office or agency for each such purpose to be
carried out in New York. In case the Issuer shall fail to
maintain any such office or agency or shall fail to provide such
notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served
at the Corporate Trust Office.
The Issuer will cause to be kept a register at the office of
the Security Registrar in which, subject to such reasonable
regulations as it may prescribe, the Issuer will provide for the
registration of Securities and of transfers of Securities. The
Trustee is hereby initially appointed Security Registrar for the
purpose of registering Securities and transferring Securities as
herein provided.
The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of any 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 3.2. 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 6.9, 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 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,
(c) that it will, at any time during the continuance
of any such failure, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in
trust by such paying agent, and
(d) that it will in all respects comply with the
provisions of the Trust Indenture Act of 1939 applicable to
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, such sum to be held as
provided in the Trust Indenture Act of 1939, 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 until such sums shall be paid to such
Persons or otherwise disposed of as herein provided. 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 with respect
to this Indenture 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 the Trustee on or before March 31 in each year
(beginning with March 31, 1997) a brief certificate (which need
not comply with Section 11.5) from the Issuer, signed by its
principal executive officer, principal financial officer, or
principal accounting officer, stating that in the course of the
performance by the signer of his duties as an officer of the
Issuer, he would normally have knowledge of any Default or non-
compliance by the Issuer in the performance or fulfillment of any
covenant, agreement or condition of the Issuer, contained in this
Indenture, stating whether or not he has knowledge of any such
Default or non-compliance and, if so, specifying each such
Default or non-compliance of which the signer has knowledge and
the nature thereof.
SECTION 3.6 Corporate Existence. Subject to Article Nine,
the Issuer will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate
existence, rights and franchises; provided that the Issuer shall
not be required to preserve its corporate existence or any such
right or franchise if the Issuer shall determine that the
preservation thereof is no longer desirable in the conduct of its
business and that the loss thereof is not disadvantageous in any
material respect to the Holders of any series of Securities.
SECTION 3.7 Luxembourg Publications. In the event of the
publication of any notice pursuant to Section 5.11, 6.9, 6.10,
8.2, 10.4, 12.2 or 12.5, the party making such publication in 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 any Officers' 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 each covenants and agrees that it 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 Securities of each series:
(a) semiannually and not more than 15 days after each
Regular Record Date, 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 for such series.
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 Securities (i)
contained in the most recent list furnished to the Trustee as
provided in Section 4.1, (ii) received by the Trustee in its
capacity as Security Registrar for such series, if so acting, and
(iii) filed with the Trustee for the purpose of receiving notice
within two preceding years. The Trustee may destroy any list
furnished to it as provided in Section 4.1 upon receipt of a new
list so furnished.
(b) The rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or
under any series of the Securities, and the corresponding rights
and duties of the Trustee, shall be as provided by the Trust
Indenture Act.
(c) Every Holder of Securities, by receiving and
holding the same, agrees with the Issuer and the Trustee that
none of the Issuer, the Trustee or any agent of any of the Issuer
or the Trustee shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders
made pursuant to the Trust Indenture Act.
SECTION 4.3 Reports by the Issuer. The Issuer shall file
with the Trustee and the Commission, and transmit to Holders,
such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act
at the times and in the manner provided pursuant to such Act,
provided that any such information, documents or reports required
to be filed with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act ("SEC Reports") shall be filed with the
Trustee within 15 days after the same is so required to be filed
with the Commission.
SECTION 4.4 Reports by the Trustee. (a) Within 60 days
after _________ of each year, commencing with the first _____
following the first issuance of Securities pursuant to Section
2.4, if required by Section 313(a) of the Trust Indenture Act,
the Trustee shall transmit, pursuant to Section 313(c) of the
Trust Indenture Act, a brief report dated as of such ______ with
respect to any of the events specified in said Section 313(a)
which may have occurred since the later of the immediately
preceding ________________________ and the date of this
Indenture.
(b) The Trustee shall transmit the reports required by
Section 313(b) of the Trust Indenture Act and Section 5.11 hereof
at the times specified therein.
(c) Reports pursuant to this Section shall be
transmitted in the manner and to the Persons required by Sections
313(c) and 313(d) of the Trust Indenture Act.
(d) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each
stock exchange upon which the Securities of any series are
listed, with the Commission and with the Issuer. The Issuer will
promptly notify the Trustee when the Securities of any series are
listed on any stock 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 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 or any
Coupon appertaining thereto (together with any additional
amounts payable with respect to such Securities) 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 their
Stated Maturity, upon any redemption by declaration or
otherwise; provided that, if such default is the result of
an optional redemption by the Holders of such Securities,
the amount thereof shall be in excess of $50,000,000 or the
equivalent thereof in any currency or composite currency; or
(c) failure on the part of the Issuer duly to comply
with, observe or perform any of the other covenants or
agreements on the part of the Issuer contained in, or
provisions of, the Securities of any series or this
Indenture (other than a covenant or agreement which is not
applicable to the Securities of such series), but only if
such default shall not have been remedied 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 either series of Securities; or
(d) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of
the Issuer in an involuntary case or proceeding under any
applicable Insolvency Law or (B) a decree or order adjudging
the Issuer a bankrupt or insolvent under an applicable
Insolvency Law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar
official of the Issuer or of any substantial part of the
property of the Issuer or ordering the winding up or
liquidation of the affairs of the Issuer and the continuance
of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60
consecutive days; or
(e) the commencement by the Issuer of a voluntary case
or proceeding under any applicable Insolvency Law or of any
other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by the Issuer to the entry of a
decree or order for relief in respect of the Issuer in an
involuntary case or proceeding under any applicable
Insolvency Law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Issuer or the
filing by the Issuer of a petition, answer or consent
seeking reorganization or relief under any applicable
Insolvency Law, or the consent by the Issuer to the filing
of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Issuer or
of any substantial part of the property of the Issuer or the
making by the Issuer of an assignment for the benefit of
creditors, or the admission by the Issuer in writing of its
inability to pay its debts generally as they become due, or
the taking of corporate action (which shall involve the
passing of one or more Board Resolutions by the Issuer) in
furtherance of any such action,
(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
("Debt") 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 affected thereby;
(g) a default with respect to any obligations, which
default results in the acceleration of Debt in an amount in
excess of $50,000,000 or the equivalent thereof in any other
currency or composite currency without such Debt 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 affected
thereby; or
(h) any other Event of Default provided for with
respect to Securities of that series in the supplemental
indenture under which such series is issued or in the terms
of Securities for such series or the Coupons, if any,
appertaining thereto;
provided that if any such failure, default or acceleration
referred to in clauses (f), (g) 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, waived,
rescinded or annulled without further action on part of either
the Trustee or any of the Securityholders.
If an Event of Default described in other than those
specified in Section 5.1(d) or (e) (if the Event of Default under
clause (c), (f) or (g), as the case may be, is with respect to
less than all series of Securities then Outstanding) occurs and
is continuing, 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 each such affected series then Outstanding
hereunder (voting as a single class) 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 any such
affected 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 all such affected 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. If an Event of Default other than
those specified in Section 5.1(d) or (e) (if the Event of Default
under clause (c), (f) or (g), as the case may be, is with respect
to all series of Securities then Outstanding), occurs and is
continuing, then and in each and every such case, unless the
principal of all the Securities shall have already become due and
payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of all the Securities then
Outstanding hereunder (treated as one class), by notice in
writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if any
Securities are Original Issue Discount Securities, such portion
of the principal as may be specified in the terms thereof) of all
the Securities then Outstanding, and interest accrued thereon, if
any (together with any additional amounts payable with respect to
such Securities), to be due and payable immediately, and upon any
such declaration the same shall become immediately due and
payable. If an Event of Default specified in Section 5.1(d) or
(e) occurs, the principal of and accrued interest on the
Securities shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee
or any Securityholder.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the
Securities of such series 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 monies 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 (together with any additional amounts payable with
respect to such Securities) upon all the Securities of such
series and the principal of any and all Securities of each 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 (together with any additional
amounts payable with respect to such Securities), 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 each such series (or the respective rates of interest or
Yields to Maturity of all the Securities, as the case may be) 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 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
each such series or of all the Securities, in each case voting as
a single class, then Outstanding, by written notice to the Issuer
and 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 accrued 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 Debt 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 the Stated 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 such Securities of such series, and such Coupons,
if any, 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 principal of and interest on
Securities of such series be overdue.
If an Event of Default occurs and is continuing, 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 to protect and enforce its rights
and the rights of the Holders by such appropriate judicial
proceeding as the Trustee may deem most effectual to protect and
enforce any such rights, 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 any other obligor
upon the Securities of such series and collect in the manner
provided by law out of the property of the Issuer or any other
obligor upon the Securities of such series, wherever situated the
monies adjudged or decreed to be payable.
In the case of any judicial proceeding relating to the
Issuer or any other obligor upon the Securities of such series,
or the property or creditors of the Issuer or any such obligor,
the Trustee shall be entitled and empowered, by intervention in
such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act of 1939 in order to have
claims of the Holders and the Trustee allowed in any such
proceeding. In addition, unless prohibited by applicable law and
regulations, the Trustee shall be entitled and empowered to vote
on behalf of the Holders of Securities of any series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceeding or a Person providing similar functions in comparable
proceedings.
The Trustee shall be authorized to collect and receive any
monies 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 and all other amounts due to the Trustee or any predecessor
Trustee pursuant to Section 6.6.
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
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 series, may be prosecuted and
enforced by the Trustee without the possession of any of the
Securities of such series or Coupons appertaining to such series
or the production thereof on any trial or other proceedings
relative thereto, and any such action or proceedings instituted
by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements, advances 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 of such series or Coupons appertaining
thereto in respect of which 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 of 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 monies 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
monies on account of principal or interest, upon presentation of
the several Securities and Coupons appertaining thereto in
respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of
the same series, of like tenor, 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 the Securities such series in respect of which monies
have been collected, including any and all amounts due the
Trustee under Section 6.6;
SECOND: In case the principal of the Securities of
such series in respect of which monies 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 monies 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 monies 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 or any Securityholder shall
have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee or
to such Securityholder, then and in every such case, subject to
any determination in such proceeding, the Issuer, the Trustee and
the Securityholders shall be restored severally and respectively
to their former positions and rights hereunder, and thereafter
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, judicial or otherwise, 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 (i) such Holder previously shall have
given to the Trustee written notice of a continuing Event of
Default as hereinbefore provided, (ii) the Holders of not less
than 25% in aggregate principal amount of the Securities of such
affected series then Outstanding, treated as a single class 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; (iii) 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 proceedings; and (iv)
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 of the
Securities of such series or Coupons and the Trustee, that no one
or more Holders of Securities of such series shall have any right
in any manner whatever by virtue or by availing of any provision
of this Indenture to affect, disturb or prejudice the rights of
any other Holder of Securities or 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 (together with any additional
amounts payable with respect to such Securities) such Security or
Coupon and any interest in respect of a Default in the payment of
any such amounts, on or after the respective due dates expressed
in such Security or Coupon or Redemption Dates prescribed for
therein or to institute suit for the enforcement of any such
payment rights 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 Section
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 any
of the 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 Securityholders. 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 exercising any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee by this Indenture
with respect to or for the benefit of such Securities of such
series; provided that such direction shall not be otherwise than
in accordance with applicable 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 be lawfully taken or that the action or
proceeding so directed may expose the Trustee to personal
liability or if the Trustee in good faith by its board of
directors or the executive committee thereof shall so determine
that the actions or forbearances 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 forbearances 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 by
Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the Securities
of any series 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 the Securities of such series waive any past
Default or Event of Default hereunder with respect to the
Securities of such series and its consequences, except a Default
(a) in the payment of principal or interest on any Security of
such series or (b) in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the
Holder of each Security affected.
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. 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.
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 3.7, at least once in an Authorized
Newspaper in Luxembourg) and (ii) to all Holders of Securities of
such affected series in the manner and to the extent provided in
Section 4.4(c), unless such defaults shall have been cured before
the mailing or publication of such notice (the term "default" or
"defaults" for the purposes of this Section 5.11 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.
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 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 other than the Trustee 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 including the Trustee, 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 Outstanding, 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
particular series has occurred (which has not been cured or
waived) the Trustee shall exercise 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 willful 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, certificates 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 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 from the Issuer 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,
Officers' Certificate or any other certificate, statement,
instrument, opinion, report, notice, request, direction.
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 Officers' Certificate (unless other evidence in respect
thereof be herein specifically prescribed), and any Board
Resolution of the Issuer may be evidenced to the Trustee by
a copy thereof certified by the Secretary or assistant
secretary of the Issuer;
(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, suffered 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 then Outstanding of the
one or more series to which the Event of Default relates;
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
examination 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. 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 Section 6.12, if operative, 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 Monies Held by Trustee. Subject to the
provisions of Section 10.4 hereof, all monies 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 monies 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 but not limited to the costs and expenses of defending
itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers
or duties hereunder. The obligations of the Issuer under this
Section to compensate 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 payment of
principal of or interest on particular Securities or Coupons, and
the Securities are hereby subordinated to such senior claim.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1 or
in connection with Article Five hereof, the expenses (including
the reasonable fees and expenses of its counsel) and the
compensation for the services in connection therewith are
intended to constitute expenses of administration under any
bankruptcy law.
SECTION 6.7 Right of Trustee to Rely on Officers'
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 Officers'
Certificate of the Issuer 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 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 $50,000,000, 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 the common control with any
obligor upon any Securities issued hereunder. 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 6.9.
The provisions of this Section 6.8 are in furtherance of and
subject to Section 310(a) of the Trust Indenture Act of 1939.
SECTION 6.9 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. 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 of the Issuer, 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 giving 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 310(b) of the Trust Indenture Act of
1939 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 for
at least six months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.8 or Section
310(a) of the Trust Indenture Act of 1939 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
Issuer, 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 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 such series
and appoint a successor trustee with respect to 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 6.9 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 6.10.
(e) The Issuer shall give notice of each resignation
and each removal of the Trustee of each series of Securities and
each appointment of a successor trustee with respect to any such
series by mailing written notice of such an event by first-class
mail, postage prepaid, to the Holders of Registered Securities of
such series as their names and addresses appear in the Security
register. If any Unregistered Securities of a series affected
are then Outstanding, notice of such resignation shall be given
to the Holders thereof, (i) 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 3.7, at least once in an Authorized
Newspaper in Luxembourg) and (ii) by mailing such notice to those
Holders of Unregistered Securities who have furnished their names
and addresses to the Trustee for such purpose within the two
years preceding the giving of such notice. Each notice shall
include the name of the successor trustee for such series and the
address of its principal corporate trust office.
SECTION 6.10 Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 6.9 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 shall
become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations of its predecessor hereunder with
respect to such series, 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 monies 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 as such shall, nevertheless,
retain a prior claim upon all property or funds held or collected
by it to secure any amounts then due to 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. 10 unless at the time of such acceptance such successor
trustee shall be qualified under the provisions of Section 310(b)
of the Trust Indenture Act of 1939 and eligible under the
provisions of Section 6.8 and Section 310(a) of the Trust
Indenture Act of 1939.
Upon acceptance of appointment by a successor trustee as
provided in this Section 6. 10, the Issuer shall (i) mail notice
thereof by first-class mail to the Holders of Registered
Securities at their last addresses as they shall appear in the
Security register, or (ii) in the case of Holders of Unregistered
Securities, publish such notice 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 3.7, at least once in an Authorized Newspaper in
Luxembourg) and mail such notice to those Holders of Unregistered
Securities who have filed their names and addresses with the
Trustee for such purpose within two years preceding the giving of
such notice. Each such notice shall include the name of the
successor trustee and the address of the principal corporate
trust office. 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 6.9. If the Issuer fails to provide such notice
within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be
provided at the expense of the Issuer.
SECTION 6.11 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 of 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 310(b) of the Trust
Indenture Act of 1939 and eligible under the provisions of
Section 6.8 and Section 310(a) of the Trust Indenture Act of
1939, 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 6.12 Preferential Collection of Claims Against the
Issuer. If and when the Trustee shall be or become a creditor of
the Issuer (or any other obligor upon the Securities), the
Trustee shall be subject to the provisions of the Trust Indenture
Act regarding the collection of claims against the Issuer (or any
such other obligor).
SECTION 6.13 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, including 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 6.13 with respect
to one or more series of Securities, the Trustee may upon receipt
of a Company Order appoint a successor Authenticating Agent which
shall be acceptable to the Issuer 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, as agent of the Trustee, 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 Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar
tenor signed by such 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 such 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
or his agent or proxy of any instrument, or the authority of
such an agent or proxy to execute such 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. Prior to
surrender of a Security for registration of transfer, 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 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, 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 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 monies
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 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 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
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 of 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
Officers' Certificate listing and identifying all Securities, if
any, known by the Issuer to be owned or held by or for the
account of any of the above-described Persons; and, subject to
Sections 6.1 and 6.2, the Trustee shall be entitled to accept
such Officers' Certificate as conclusive evidence of the facts
therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such
determination.
SECTION 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 or 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.
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
Persons entitled to (i) waive any past Default with respect to
the Securities of such series in accordance with Section 5.10,
(ii) consent to any supplemental indenture in accordance with
Section 8.2 of this Indenture or (iii) waive compliance with any
term, condition or provision of any covenant hereunder (if this
Indenture should expressly provide for such waiver). 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, consent to any such supplemental
indenture or waive compliance with any such term, condition or
provision, 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 90th 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.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any
series entitled to join in the giving or making of (i) any notice
of Default, (ii) any request to institute proceedings referred to
in Section 5.6 or (iii) any direction referred to in Section 5.9,
in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of such series on such record date, and no
other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to
the applicable expiration date by Holders of the requisite
principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action
for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and
of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Trustee,
at the Issuer's expense, shall cause notice of such record date,
the proposed action by Holders and the applicable expiration date
to be given to the Issuer in writing and to each Holder of
Securities of the relevant series in the manner set forth in
Section 11.4.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer when authorized by Board Resolutions
(which resolutions 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 a
Company 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 respective covenants, agreements
and obligations of the Issuer under this Indenture or any
supplemental indenture;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions or to
surrender any right, power or option conferred by this
Indenture on the Issuer as its Board of Directors and the
Trustee shall consider to be for the protection or benefit
of the Holders of all or any series Securities or Coupons of
any series (and if such covenants are to be for the benefit
of less than all series of Securities, stating that such
covenants are being added solely for the benefit of such
series), 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, condition 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 in regard to
matters or questions under this Indenture in any
supplemental indenture as the Issuer may deem necessary or
desirable, provided, that no action under this clause (d)
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;
(f) to make any change to comply with any requirement
of the Commission in connection with the qualification of
the Indenture under the Trust Indenture Act of 1939, as
amended; and
(g) 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, immunities or liabilities 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 Issuer, when authorized by a Board Resolution or
Resolutions (which Resolutions 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 a Company 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 alter the method of computation) of
interest thereon, or reduce (or alter the method of computation
of) any amount payable on redemption or repayment thereof or
extend the time for payment thereof, 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
principal of an Original Issue Discount Security that would be
due and payable upon an acceleration of the maturity of such
Security 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 principal amount of Securities
of any series the consent of the Holders of which is required for
any such supplemental indenture to less than a majority, or
reduce the percentage of Securities of such series necessary to
consent to waive any past Default under this Indenture to less
than a majority, or modify any of the provisions of this Section
or Section 5.10, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived, in each case, without the consent of the
Holder 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 of Coupons appertaining to such
Securities, or which modifies the rights of Holders of Securities
of such series 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 Issuer, accompanied by copies of
Board Resolutions of the Issuer (which resolutions 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 a Company Order) certified by the secretary
or an assistant secretary of the Issuer authorizing the execution
of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Securityholders 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, immunities or liabilities 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 Issuer shall give notice thereof setting forth in
general terms the substance of such supplemental indenture, (i)
to the Holders of the 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 for such purpose within two years preceding the
giving of such notice, 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 3.7, at least once in an Authorized Newspaper
in Luxembourg). 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
Officers' Certificate and an Opinion of Counsel as conclusive
evidence of any series that any such supplemental indenture
complies with the applicable provisions of this Indenture and
that the execution of such supplemental indenture is authorized
or permitted by 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 Issuer, 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 of the Issuer Not to Merge,
Consolidate, Sell or Convey Property Except Under Certain
Conditions. The Issuer covenants that it will not merge with or
into or consolidate with any Person or sell, convey, transfer,
lease or otherwise dispose of all or substantially all of its
assets to any Person and the Issuer shall not permit any Person
to consolidate with or merge into the Issuer or sell, convey,
transfer, lease or otherwise dispose of all or substantially all
of its assets to the Issuer, unless (i) either the Issuer (in the
case of a merger) shall be the continuing corporation, or the
successor corporation or the Person which acquires by sale,
conveyance, transfer, lease or disposition all or substantially
all of the assets of the Issuer (if other than the Issuer) shall
be a corporation organized under the laws of the United States of
America or any State thereof or the District of Columbia, and
shall expressly assume, by supplemental indenture, in form
satisfactory to the Trustee, executed and delivered to the
Trustee by such entity pursuant to Article Eight hereof, all of
the obligations of the Issuer pursuant to this Indenture and the
Securities of all series and Coupons, if any, appertaining
thereto; (ii) immediately after giving effect to such merger,
consolidation, sale, conveyance, transfer, lease or disposition
and treating any Debt which becomes an obligation of the Issuer
as a result of such transaction as having been incurred by the
Issuer at the time of such transaction, no Default or Event of
Default shall have occurred and be continuing.
SECTION 9.2 Successor Corporation Substituted. In case of
any such consolidation, merger, sale, conveyance, transfer, lease
or disposition, and following such an assumption by the successor
corporation, such successor corporation shall succeed to and be
substituted for the Issuer, with the same effect as if it had
been named herein. Except as provided in the last paragraph of
this Section, when the successor entity assumes all obligations
of the Issuer hereunder, all obligations and covenants of the
Issuer hereunder or under the Securities shall terminate.
Such successor corporation 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 theretofore shall not have been signed by the
Issuer and delivered to the Trustee; and, upon the order of such
successor corporation, 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 and Coupons appertaining thereto, if any, which
previously shall have been signed and delivered by the officers
of the Issuer to the Trustee for authentication, and any
Securities together with any Coupons appertaining thereto which
such successor corporation 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, conveyance,
transfer, lease or disposition such changes in phraseology 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 sale, conveyance, transfer or
disposition (other than a conveyance by way of lease) covered by
this Section 9.2, the Issuer (or any successor corporation 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 to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an
Opinion of Counsel prepared in accordance with Section 11.5 as
conclusive evidence that any such consolidation, merger, sale,
transfer, 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 MONIES
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 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), as and when the same shall have become
due and payable, or (b) the Issuer shall have delivered to the
Trustee for cancellation all Securities of such series
theretofore authenticated and all unmatured Coupons appertaining
thereto (other than any Securities and Coupons appertaining
thereto of such series 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 (x) shall have become due and payable or (y) 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 monies repaid by the Trustee or
any paying agent to the Issuer in accordance with Section 10.4)
or specifically pledged as security for and dedicated solely to
the benefit of the Holders of the Securities of such series and
Coupons appertaining thereto, (x) cash in an amount, (y) 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
not later than one day before the due date of payments in respect
of the Securities, or (z) a combination thereof, sufficient
(without investment of such cash or reinvestment of any interest
or proceeds from such U.S. Government Obligations) in the opinion
of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay the principal of and interest on all Securities
of such series and Coupons appertaining thereto on each date that
such principal or interest is due and payable (whether at
maturity or through operation of a mandatory sinking fund other
than any redemption at the option of the Holder); and if, in any
such case, the Issuer shall also pay or cause to be paid all
other sums payable hereunder by the Issuer, all of the Securities
of such series and any Coupons appertaining thereto shall be
deemed paid and discharged and the provisions of this Indenture
with respect to such Securities and Coupons cease to be of
further effect (except as to (i) rights of registration of
transfer or exchange of Securities of such series or Coupons
appertaining thereto, and the Issuer's right of optional
redemption, if any, (ii) substitution of mutilated, defaced or
apparently destroyed, lost or stolen Securities or Coupons, (iii)
rights of the Holders of Securities and Coupons appertaining
thereto to receive from the property so deposited payments of
principal thereof and interest on the original stated due dates
therefor (but not upon acceleration) or the Redemption Date
therefor, as the case may be and remaining rights of Holders to
receive mandatory sinking fund payments, if any, (iv) the rights,
obligations and immunities of the Trustee hereunder, including
any right to compensation, reimbursement of expenses and
indemnification under Section 6.6, (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 Sections 3.2), and the Trustee,
on demand of the Issuer accompanied by an Officers' Certificate
and an Opinion of Counsel, which complies with Section 11.5,
stating that the provisions of this Section have been complied
with 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. In addition, in connection with the
satisfaction and discharge pursuant to clause (c)(i)(y) above,
the Trustee shall give notice to the Holders of Securities of
such satisfaction and discharge. 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,
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Issuer to the Trustee under
Section 6.6 shall survive.
(B) The following provisions shall apply to the
Securities of each series unless specifically otherwise provided
in a Board Resolution of the Issuer, Officers' Certificate of the
Issuer or indenture supplemental hereto provided pursuant to
Section 2.3. In addition to discharge of the Indenture pursuant
to Section 10.1(A), in the case of any such series of Securities
the exact or maximum amounts (including the currency of payment)
of principal and interest due on which can be determined at the
time of making the deposit referred to in Clause 10.1(B)(x)(a)
below: (x) the Issuer shall be deemed to have paid and
discharged the entire indebtedness on all Securities of such a
series and the Coupons appertaining thereto on the 91st day after
the date of the deposit referred to in Clause 10.1(B)(x)(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 or exchange of Securities of such series and Coupons
appertaining thereto and the Issuer's right of optional
redemption, if any, (ii) substitution of mutilated, defaced or
apparently destroyed, lost or stolen Securities or Coupons, (iii)
rights of Holders of Securities or Coupons appertaining thereto
to receive from the property so deposited payments of principal
thereof and interest thereon on the original stated due dates
therefor (but not on acceleration) or the Redemption Date
therefor, as the case may be, 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, including any right to compensation, reimbursement of
expenses and indemnification under Section 6.6, (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 and the rights of the Holders of
the Securities under Sections 3.2), (hereinafter "defeasance"),
and the Trustee, at the expense of the Issuer, shall at the
Issuer's request, execute proper instruments acknowledging the
same, if the Issuer notifies the Trustee that the provisions of
this Section 10.1(B) are being complied with solely to effect a
defeasance and 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 for the purpose of
making the following payments, 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 in Dollars, U.S. Government Obligations, maturing as
to principal and interest at such times and in such amounts
as will insure (without investment of such cash or
reinvestment of any interest or proceeds from such U.S.
Government Obligations) 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 the principal of and interest on all
Securities of such series and Coupons appertaining thereto
each date that such principal and interest is due and
payable (whether at maturity or upon redemption (through
operation of a mandatory sinking fund or otherwise) other
than any redemption at the option of the Holder);
(b) no Default or Event of Default or event which,
with notice or lapse of time or both, would become an Event
of Default with respect to the Securities of such series
shall have occurred and be continuing on the date of such
deposit or, insofar as Sections 5.1(d) and (e) are
concerned, at any time during the period ending on and
including the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed
satisfied until the expiration of such period);
(c) such defeasance shall not cause the Trustee to
have a conflicting interest for purposes of the Trust
Indenture Act of 1939 with respect to any securities of the
Issuer;
(d) such defeasance shall not result in a breach or
violation of, or constitute a Default under, this Indenture
or any Securities of such series;
(e) the Issuer has delivered to the Trustee an Opinion
of Counsel to the effect (i) that the Holders of the
Securities of such series and the Coupons appertaining
thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such defeasance and will
be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the
case if such defeasance had not occurred; and (ii) that the
trust arising from such deposit shall not constitute an
"investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the
Investment Company Act of 1940, as amended;
(f) the Issuer has paid or caused to be paid all other
sums then payable hereunder by the Issuer and the Issuer has
delivered to the Trustee an Officers' 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.
(C) The Issuer shall be released from its obligations
under Section 9.1 and any other covenants specified pursuant to
Section 2.3 with respect to the Securities of any series and any
Coupons appertaining thereto on and after the date the conditions
set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means
that, with respect to the outstanding Securities of the
applicable series, the Issuer may omit to comply with and shall
have no liability in respect of any term, condition or limitation
set forth in such Section or any such covenant, whether directly
or indirectly by reason of any reference elsewhere herein to such
Section or any such covenant or by reason of any reference in
such Section to any other provision herein or in any other
document and such omission to comply shall not constitute an
Event of Default under Section 5.1, but the remainder of this
Indenture and such Securities and Coupons shall be unaffected
thereby. The following shall be the conditions to application of
this subsection (C) of this Section 10.1:
(a) the Issuer has irrevocably deposited or caused to
be irrevocably deposited with the Trustee as trust funds in
trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of 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
payment 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 in an amount 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 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 (whether at
maturity or upon redemption (through operation of a
mandatory sinking fund or otherwise) other than any
redemption at the option of the Holder);
(b) no Default or Event of Default or event which with
notice or lapse of time or both would become an Event of
Default with respect to the Securities shall have occurred
and be continuing on the date of such deposit or, insofar as
subsections 5.1(d) and (e) are concerned, at any time during
the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period);
(c) such covenant defeasance 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;
(d) such covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section
310(b) of the Trust Indenture Act of 1939;
(e) such covenant defeasance shall not cause any
Securities then listed on any registered national securities
exchange to be delisted;
(f) the Issuer shall have delivered to the Trustee an
Opinion of Counsel to the effect (i) 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 covenant defeasance and
will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred; and
(ii) that the trust arising from such deposit shall not
constitute an "investment company" or an entity "controlled"
by an "investment company" as such terms are defined in The
Investment Company Act of 1940, as amended; and
(g) the Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each
stating that all conditions precedent relating to the
covenant 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 monies and
securities 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 monies or securities have
been deposited with the Trustee, of all sums due and to become
due thereon for principal and interest; but such monies or
securities need not be segregated from other funds except to the
extent required by law.
SECTION 10.3 Repayment of Monies Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture
with respect to the Securities of any series, all monies then
held by any paying agent under the provisions of this Indenture
with respect to such series 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 monies.
SECTION 10.4 Return of Monies Held by Trustee and Paying
Agent Unclaimed for Two Years. Any monies or U.S. Government
Obligations deposited with or paid to the Trustee or any paying
agent for the payment of the principal of and 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 and 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
monies shall thereupon cease; provided, however, that the Trustee
or such paying agent, before being required to make any such
repayment with respect to monies 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 for such purpose
within two years preceding the giving of such notice, 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
City of New York and once in an Authorized Newspaper in London
(and, if required by Section 3.7, at least once in an Authorized
Newspaper in Luxembourg) notice, that such monies 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 Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No
recourse shall be had for the payment of the principal of, or
interest on any Security or any Coupon appertaining thereto, for
any claim based thereon, or otherwise in respect thereof, or
based on or in respect of this Indenture or any indenture
supplement thereto, against any incorporator, stockholder,
officer or director, as such, past, present or future, of the
Issuer or any successor corporation, either directly or through
the Issuer, or any successor corporation, whether by virtue of
constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by
the acceptance of such Security and any Coupons appertaining
thereto and as part of the consideration for the issue thereof,
expressly waived and released.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders. Nothing in this Indenture or in the
Securities or in Coupons appertaining thereto, expressed or
implied, shall give or be construed to give to any Person, 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 the Holders of the Securities or Coupons, if any.
SECTION 11.3 Successors and Assigns of Issuer Bound by
Indenture. All covenants and agreements in this Indenture by the
Issuer shall bind its successors and assigns (whether by merger,
consolidation or otherwise), whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, the Trustee and
Securityholders. Any notice or demand which by any provision of
this Indenture is required or permitted to be given or served by
the Trustee or by the Holders of Securities 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
Copper & Gold Inc., 1615 Poydras Street, New Orleans, Louisiana
70112, Attention: Corporate Secretary. Any notice, direction,
request or demand by the Issuer or any Securityholder to or upon
the Trustee shall be deemed to have been sufficiently given or
made, for all purposes, if given or made at the Corporate Trust
Office, 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, notice shall be (i) mailed to those
Holders of Unregistered Securities who have filed their names and
addresses for this purpose with the Trustee within the two years
preceding giving such notice, with such notice being 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 and
(ii) published at least once in an Authorized Newspaper in the
City of New York, and at least once in an Authorized Newspaper in
London (and, if required by Section 3.7, at least once in an
Authorized Newspaper in Luxembourg). 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 and Securityholders 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 satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice.
SECTION 11.5 Officers' Certificate and Opinions of Counsel,
Statements to Be Contained Therein. Upon any application or
demand by the Issuer to the Trustee to take any action under any
of the provisions of this Indenture, the Issuer shall furnish to
the Trustee an Officers' Certificate stating that all conditions
precedent 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.
Except as provided in Sections 3.5 and 12.5, 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 providing such opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based, (c)
a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with and (d) a statement as to
whether or not, in the opinion of such Person, such condition or
covenant has been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon
a certificate or opinion of or representations by counsel, unless
such officer knows that the certificate or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion 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
Issuer upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer unless
such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of or
representations by an accountant or firm of accountants in the
employ of the Issuer unless such officer or counsel, as the case
may be, knows that the certificate or opinion or representations
with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are
erroneous, 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 Security
shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or of the Securities of such series)
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 hereof limits,
qualifies or conflicts with the duties imposed by any of Sections
310 through 317, inclusive, of the Trust Indenture Act of 1939 or
with another provision hereof which is required to be included by
any of Section 310 through 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 shall each 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 said 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 11.10Effect 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 11.11Securities in a Foreign Currency or in ECU.
Unless otherwise specified in an Officers' 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 11.12Judgment 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. Notice of redemption to
the Holders of Registered Securities to be redeemed as a whole or
in part at the option of the Issuer shall be given in the manner
provided in Section 11.4, at least 30 days and not more than 60
days prior to the date fixed for redemption to such Holders of
Securities. Any notice to be given by publication in an
Authorized Newspaper or Newspaper shall, in each case, be
published 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 Redemption Date, the applicable
Redemption Price, and, if the Redemption Price was required to be
calculated accordingly, or 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 a mandatory or optional sinking fund,
or both, if such be the case, that interest accrued to the
Redemption Date will be paid as specified in said notice and that
on and after said Redemption 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.
At least one Business Day prior to the Redemption Date
specified in the notice of redemption given as provided in this
Section, the Issuer will deposit with the Trustee or with one or
more paying agents (or, if the Issuer is acting as its own paying
agent, 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 to be redeemed
at the appropriate Redemption Price, together with accrued
interest to and including the Redemption Date. If less than all
Securities of any series are to be redeemed, the Issuer will
deliver to the Trustee at least 70 days prior to the Redemption
Date an Officers' 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 Officers' 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
provisions relating to the redemption of Securities of any series
shall relate, in the case of any Security redeemed or to be
redeemed only in part, to the portion of the principal amount of
such Security which has been or is to be redeemed. In case of a
redemption at the election of the Issuer prior to the expiration
of any restriction on such redemption, the Issuer shall deliver
to the Trustee, prior to the giving of any notice of redemption
to Holders pursuant to this Section, an Officers' Certificate
stating that such restriction has been complied with.
SECTION 12.3 Payment of Securities Called for Redemption. If
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 Redemption Date and at the
place stated in such notice at the applicable Redemption Price,
together with interest accrued to and including the Redemption
Date, and on and after said Redemption Date (unless the Issuer
shall default in the payment of such Securities at the Redemption
Price, together with interest accrued to said Redemption 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 such Securities
shall cease from and after the Redemption Date to be entitled to
any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities to be
redeemed except the right to receive the applicable Redemption
Price thereof and unpaid interest to and including the Redemption
Date. On surrender of such Securities at a place of payment
specified in said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such
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 and including the
Redemption Date; provided that any payment of interest becoming
due on or prior to the Redemption Date 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, registered as such on the
relevant Regular 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 Redemption Date
at the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in 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 surrender 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 for such series, of
authorized denominations, in principal amount equal to the
unredeemed portion of the Security so prescribed.
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
Officers' Certificate of the Issuer 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 Officers' 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 Officers'
Certificate (or reasonably promptly thereafter if acceptable to
the Trustee). Such Officers' 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 or cause to be delivered
such Officers' 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 and subject to the
limitations in Section 12.4, 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 monies 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 monies, 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 monies 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 monies in the sinking fund
for such series at the time when any such default or Event of
Default shall occur, and any monies 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 monies
shall thereafter be applied on the next succeeding sinking fund
payment date in accordance with this Section to the redemption of
such Securities.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1 Agreement to Subordinate. The Issuer covenants
and agrees, and each Holder of a Security or Coupon issued
hereunder, by his acceptance thereof, likewise covenants and
agrees, that all Securities and Coupons shall be issued subject
to the provisions of this Article; and each Person holding any
Security or Coupon, whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees that the
principal of and interest on all Securities and Coupons issued
hereunder shall, to the extent and in the manner herein set
forth, be subordinated and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and that the
subordination is for the benefit of the holders of the Senior
Indebtedness.
SECTION 13.2 Payments to Securityholders. As to each series
of Securities and Coupons, if any, issued hereunder, in the event
(a) of any insolvency or bankruptcy proceedings, or any
receivership, dissolution, winding-up, total or partial
liquidation, reorganization or other similar proceedings in
respect of the Issuer or a substantial part of its property,
whether voluntary or involuntary, or (b) that (i) a default shall
have occurred with respect to the payment of principal of or
interest on or other monetary amounts due and payable with
respect to any Senior Indebtedness, or (ii) there shall have
occurred an event of default (other than a default in the payment
of principal or interest or other monetary amounts due and
payable) in respect of any Senior Indebtedness, as defined in
such Senior Indebtedness or in the instrument under which the
same is outstanding, permitting the holder or holders thereof to
accelerate the maturity thereof, and such default or event of
default shall not be cured or was continued beyond the period of
grace, if any, in respect thereof, and such default or event of
default shall not have been waived or shall not have ceased to
exist, or (c) separately with respect to each series of
Securities, that the principal of and accrued interest on such
Securities shall have been declared due and payable pursuant to
Section 5.1 and such declaration shall not have been rescinded
and annulled as provided in Section 5.1, then the holders of all
Senior Indebtedness shall first be entitled to receive payment in
full of all amounts due or to become due thereon, or provision
shall be made, in accordance with the terms of such Senior
Indebtedness, for such payment in money or money's worth, before
the Holders of such series of Securities or Coupons are entitled
to receive a payment on account of the principal of or interest
on the indebtedness evidenced by such series of Securities or of
such Coupons, including, without limitation, any payments made
pursuant to Article Twelve, or any cash payments to purchase such
series of Securities at the option of the Holders thereof.
Upon any such insolvency or bankruptcy proceeding,
receivership, dissolution, winding-up, total or partial
liquidation, reorganization, or other similar proceeding referred
to in clause (a) of the immediately preceding paragraph, any
payment or distribution of assets of the Issuer of any kind or
character, whether in cash, property or securities, to which the
Holders of the Securities and any Coupon or the Trustee under
this Indenture would be entitled, except for the provisions
hereof, shall be paid by the Issuer or by any receiver, trustee
in bankruptcy, liquidating trustee, agent or other Person making
such payment or distribution or, to the extent required by the
next succeeding paragraph, by the Holders of the Securities or
any Coupons or the Trustee, if received by them or it, directly
to the holders of Senior Indebtedness (pro rata to such holders
on the basis of the respective amounts of Senior Indebtedness
held by such holders) or their respective representatives, or to
the trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such Senior Indebtedness may have
been issued, as their respective interests may appear, to the
extent necessary to pay all Senior Indebtedness in full after
giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness, before any payment or
distribution is made to the Holders of the indebtedness evidenced
by the Securities or any Coupons (including any cash payments to
repurchase such Securities at the option of the Holders thereof)
or to the Trustee under this Indenture.
In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Issuer of any kind or
character, whether in cash, property or securities, prohibited by
the foregoing provisions of this Section, shall be received by
the Trustee under this Indenture or the Holders of the Securities
or any Coupons before all Senior Indebtedness is paid in full or
provision is made for such payment in accordance with its terms,
and if such fact shall, at or prior to the time of such payment
or distribution, have been known to the Trustee, then such
payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of such Senior
Indebtedness or their respective representatives, or to the
trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such Senior Indebtedness may have
been issued, as their respective interests may appear, for
application to the payment of all Senior Indebtedness remaining
unpaid until all such Senior Indebtedness shall have been paid in
full in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the holders of such
Senior Indebtedness.
For purposes of this Article only, the words, "cash,
property or securities" shall not be deemed to include shares of
stock of the Issuer as reorganized or readjusted, or securities
of the Issuer or any other corporation provided for by a plan of
arrangement, reorganization or readjustment, the payment of which
is subordinated (at least to the extent provided in this Article
with respect to the Securities) to the payment of all Senior
Indebtedness which may at the time be outstanding; provided that
(i) the Senior Indebtedness is assumed by the new corporation, if
any, resulting from any such arrangement, reorganization or
readjustment, and (ii) the rights of the holders of the Senior
Indebtedness are not, without the consent of such holders,
altered by such arrangement, reorganization or readjustment. The
consolidation of the Issuer with, or the merger of the Issuer
with or into, another corporation or the liquidation or
dissolution of the Issuer following the conveyance or transfer of
all or substantially all of its assets to another corporation
upon the terms and conditions provided in Article Nine shall not
be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section if such other
corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in
Article Nine. Nothing in this Section shall apply to claims of,
or payments to, the Trustee under or pursuant to Article Six,
except as expressly provided therein. This Section shall be
subject to the further provisions of Section 13.5.
SECTION 13.3 Subrogation. Subject to the payment in full of
all Senior Indebtedness, the Holders of the Securities and any
Coupons subject to the provisions of Section 13.2 shall be
subrogated (equally and ratably with the holders of all
obligations of the Issuer which by their express terms are
subordinated to Senior Indebtedness of the Issuer to the same
extent as the Securities are subordinated and which are entitled
to like rights of subrogation) to the rights of the holders of
Senior Indebtedness to receive payments or distributions of cash,
property or securities of the Issuer applicable to the Senior
Indebtedness until the principal of and interest on such
Securities and the amounts owed pursuant to any such Coupons
shall be paid in full; and, for the purpose of such subrogation,
no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the
Holders of such Securities or any such Coupons or the Trustee on
their behalf would be entitled except for the provisions of this
Article, and no payment over pursuant to the provisions of this
Article to the holders of Senior Indebtedness by Holders of such
Securities or any such Coupons or the Trustee on their behalf
shall, as between the Issuer, its creditors other than holders of
Senior Indebtedness and the Holders of such Securities or any
such Coupons, be deemed to be a payment by the Issuer to or on
account of the Senior Indebtedness; and no payments or
distributions of cash, property or securities to or for the
benefit of the Securityholders pursuant to the subrogation
provision of this Article, which would otherwise have been paid
to the holders of Senior Indebtedness, shall be deemed to be a
payment by the Issuer to or for the account of such Securities.
The provisions of this Article are intended solely for the
purpose of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as
between the Issuer, its creditors other than the holders of
Senior Indebtedness, and the Holders of the Securities, the
obligation of the Issuer, which is absolute and unconditional, to
pay to the Holders of the Securities the principal of and
interest on the Securities and the amounts owed pursuant to any
Coupons as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect
the relative rights against the Issuer of the Holders of the
Securities and creditors of the Issuer other than the holders of
Senior Indebtedness, nor shall anything herein or therein prevent
the Holder of any Security or the Trustee on his behalf from
exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Indebtedness in
respect of cash, property or securities of the Issuer received
upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Issuer
referred to in this Article, the Trustee, subject to the
provisions of Sections 6.1 and 6.2, and the Holders of the
Securities and any Coupons shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in
which such insolvency, bankruptcy, dissolution, winding-up,
liquidation, arrangement or reorganization proceedings are
pending, or a certificate of the receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of the
Securities and of any Coupons, for the purpose of ascertaining
the Persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the
Issuer, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 13.4 Authorization by Securityholders. Each Holder
of a Security or Coupon by his acceptance thereof authorizes the
Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-fact for any and
all such purposes.
SECTION 13.5 Notice to Trustee. The Issuer shall give
prompt written notice to the Trustee and to any paying agent of
any fact known to the Issuer which would prohibit the making of
any payment of monies to or by the Trustee or any paying agent in
respect of the Securities or any Coupons pursuant to the
provisions of this Article. Regardless of anything to the
contrary contained in this Article or elsewhere in this
Indenture, the Trustee shall not be charged with knowledge of the
existence of any Senior Indebtedness or of any default or event
of default with respect to any Senior Indebtedness or of any
other facts which would prohibit the making of any payment of
monies to or by the Trustee in respect of the Securities or any
Coupons, unless and until the Trustee shall have received notice
in writing (which may be by telegram, telecopy or other similar
writing) at its Corporate Trust Office to that effect signed by
an officer of the Issuer, or by a holder or agent of a holder of
Senior Indebtedness who shall have been certified by the Issuer
or otherwise established to the reasonable satisfaction of the
Trustee to be such holder or agent, or by the trustee under any
indenture pursuant to which Senior Indebtedness shall be
outstanding, and, prior to the receipt of any such written
notice, the Trustee shall, subject to Sections 6.1 and 6.2, be
entitled to assume that no such facts exist; provided that if on
a date at least two Business Days prior to the date upon which by
the terms hereof any such monies shall become payable for any
purpose (including, without limitation, the payment of the
principal of or interest on any Security) the Trustee shall not
have received with respect to such monies the notice provided for
in this Section, then, regardless of anything herein to the
contrary, the Trustee shall have full power and authority to
receive such monies and to apply the same to the purpose for
which they were received, and shall not be affected by any notice
to the contrary which may be received by it on or after such
prior date.
Regardless of anything to the contrary herein (but subject,
in the case of clause (a) of this paragraph, to the second
paragraph of Section 13.2), nothing shall prevent (a) any payment
by the Issuer or the Trustee to the Securityholders of amounts in
connection with a redemption of Securities if (i) notice of such
redemption has been given pursuant to Article Twelve prior to the
receipt by the Trustee of written notice as aforesaid, and (ii)
such notice of redemption is given not earlier than 60 days
before the Redemption Date, or (b) any payment by the Trustee to
the Securityholders of amounts deposited with it pursuant to
Section 10.1, provided, that, in the case of Section 10.1(B), the
applicable Securities are deemed to have been paid and
discharged, and in the case of Section 10.1(A), the Trustee shall
not have received, by at least two Business Days prior to the
date of execution of instruments acknowledging the satisfaction
of and discharge of this Indenture with respect to the applicable
Securities, the notice provided in the preceding paragraph.
Subject to Sections 6.1 and 6.2, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior Indebtedness
(or a trustee on behalf of such holder) to establish that such
notice has been given by a holder of Senior Indebtedness or a
trustee on behalf of any such holder. In the event that the
Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the
rights of such Person under this Article, and if such evidence is
not furnished the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to
receive such payment.
SECTION 13.6 Trustee's Relation to Senior Indebtedness. The
Trustee and any agent of the Issuer or the Trustee shall be
entitled to all the rights set forth in this Article with respect
to any Senior Indebtedness which may at any time be held by it in
its individual or any other capacity to the same extent as any
other holder of Senior Indebtedness and nothing in Section 6.13
or elsewhere in this Indenture shall deprive the Trustee or any
such agent of any of its rights as such holder. Nothing in this
Article shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 6.6.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this
Article, and no implied covenants or obligations with respect to
the holders of Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Senior Indebtedness
and, subject to the provisions of Sections 6.1 and 6.2, the
Trustee shall not be liable to any holder of Senior Indebtedness
if it shall in good faith pay over or deliver to Holders of
Securities, the Issuer or any other Person monies or assets to
which any holder of Senior Indebtedness shall be entitled by
virtue of this Article or otherwise.
SECTION 13.7 No Impairment of Subordination. No right of
any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any
way be prejudiced or impaired by any act or failure to act on the
part of the Issuer or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Issuer
with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof which any such holder may
have or otherwise be charged with.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of
_____________________, 1996.
FREEPORT-McMoRan Copper & Gold Inc.
By: _____________________________
Name:
Title:
[CORPORATE SEAL]
Attest:
By: ____________________________
Name:
Title:
____________________________, as Trustee
By: ____________________________
Name:
Title:
[CORPORATE SEAL OF TRUSTEE]
Attest:
By: _________________________
Name:
Title:
STATE OF LOUISIANA
PARISH OF ORLEANS
On this ____ day of ______________________, 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 a ______________________ of Freeport-
McMoRan Copper & Gold Inc., one of the corporations described in
and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
authority of the board of Directors of said corporation, and that
he signed his name thereto by like authority.
[NOTARIAL SEAL]
______________________________
Notary Public
STATE OF NEW YORK
COUNTY OF NEW YORK
On this ____ day of ______________________, 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 a _____________ of
________________, one of the corporations described in and which
executed the above instrument; that he knows the corporate seal
of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his
name thereto by like authority.
[NOTARIAL SEAL]
___________________________
Notary Public
FCX FINANCE COMPANY B.V., Issuer,
FREEPORT-McMoRAN COPPER & GOLD INC., Guarantor
and
_______________________, Trustee
SENIOR
INDENTURE
Dated as of _____________________, 1996
<PAGE> i
TABLE OF CONTENTS
Page
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE - DEFINITIONS
SECTION 1.1 Certain Terms Defined . . . . . . . . . . . . 1
Authenticating Agent . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . 2
Authorized Signatory . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . 2
Company Order . . . . . . . . . . . . . . . . . . . . . 2
Corporate Trust Office . . . . . . . . . . . . . . . . . 3
Coupon . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debt . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Default . . . . . . . . . . . . . . . . . . . . . . . . 3
Defeasance . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . 3
Dollar . . . . . . . . . . . . . . . . . . . . . . . . . 3
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . 3
Exchange Act . . . . . . . . . . . . . . . . . . . . . . 3
FCX . . . . . . . . . . . . . . . . . . . . . . . . . . 3
FCX Guarantee or FCX Guarantees . . . . . . . . . . . . 3
Foreign Currency . . . . . . . . . . . . . . . . . . . . 3
Guarantee . . . . . . . . . . . . . . . . . . . . . . . 3
Guarantor . . . . . . . . . . . . . . . . . . . . . . . 4
Holder, Holder of Securities, Securityholder . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . 4
Insolvency Law . . . . . . . . . . . . . . . . . . . . . 4
Interest . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . 4
Issuer . . . . . . . . . . . . . . . . . . . . . . . . . 4
Judgment Currency . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . 4
original issue date . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . . . . . 5
<PAGE> ii
Outstanding . . . . . . . . . . . . . . . . . . . . . . 5
Periodic Offering . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . 6
principal . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . 6
Registered Global Security . . . . . . . . . . . . . . . 6
Registered Security . . . . . . . . . . . . . . . . . . 6
Required Currency . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . 6
SEC Reports . . . . . . . . . . . . . . . . . . . . . . 6
Securities Act . . . . . . . . . . . . . . . . . . . . . 6
Security or Securities . . . . . . . . . . . . . . . . . 6
Security Registrar . . . . . . . . . . . . . . . . . . . 6
Stated Maturity . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act of 1939 . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 7
Unregistered Security . . . . . . . . . . . . . . . . . 7
U.S. Government Obligations . . . . . . . . . . . . . . 7
Yield to Maturity . . . . . . . . . . . . . . . . . . . 7
ARTICLE TWO - ISSUE, EXECUTION, FORM AND REGISTRATION OF
SECURITIES
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . 7
SECTION 2.2 Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . 7
SECTION 2.3 Amount Unlimited; Issuable in Series . . . . . 8
SECTION 2.4 Authentication and Delivery of
Securities . . . . . . . . . . . . . . . . . . 11
SECTION 2.5 Execution of Securities . . . . . . . . . . . 14
SECTION 2.6 Certificate of Authentication . . . . . . . . 14
SECTION 2.7 Denomination and Date of Securities;
Payments of Interest . . . . . . . . . . . . . 14
SECTION 2.8 Registration, Transfer and Exchange . . . . . 15
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost
and Stolen Securities . . . . . . . . . . . . 18
SECTION 2.10 Cancellation of Securities;
Disposition Thereof . . . . . . . . . . . . . 19
SECTION 2.11 Temporary Securities . . . . . . . . . . . . . 20
ARTICLE THREE - COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest . . . . . . 20
SECTION 3.2 Offices for Payments, etc. . . . . . . . . . . 21
SECTION 3.3 Appointment to Fill a Vacancy in
Office of Trust2e . . . . . . . . . . . . . . 22
SECTION 3.4 Paying Agents . . . . . . . . . . . . . . . . 22
<PAGE> iii
SECTION 3.5 Written Statement to Trustee . . . . . . . . . 23
SECTION 3.6 Corporate Existence . . . . . . . . . . . . . 23
SECTION 3.7 Limitation on Other Business
Activities . . . . . . . . . . . . . . . . . . 23
SECTION 3.8 Luxembourg Publications . . . . . . . . . . . 24
ARTICLE FOUR - SECURITYHOLDERS' LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer and FCX to Furnish Trustee
Information as to Names and
Addresses of Securityholders . . . . . . . . . 24
SECTION 4.2 Preservation and Disclosure of
Securityholders' Lists . . . . . . . . . . . . 24
SECTION 4.3 Reports by the Issuer . . . . . . . . . . . . 25
SECTION 4.4 Reports by the Trustee . . . . . . . . . . . . 25
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 . . . . . . . . . . . . . . . . . . . 25
SECTION 5.2 Collection of Debt by Trustee;
Trustee May Prove Debt . . . . . . . . . . . . 29
SECTION 5.3 Application of Proceeds . . . . . . . . . . . 30
SECTION 5.4 Suits for Enforcement . . . . . . . . . . . . 31
SECTION 5.5 Restoration of Rights on Abandonment
of Proceedings . . . . . . . . . . . . . . . . 31
SECTION 5.6 Limitations on Suits by Securityholders . . . 32
SECTION 5.7 Unconditional Right of
Securityholders to Institute Certain
Suits . . . . . . . . . . . . . . . . . . . . 32
SECTION 5.8 Powers and Remedies Cumulative; Delay
or Omission Not Waiver of Default . . . . . . 32
SECTION 5.9 Control by Securityholders . . . . . . . . . . 33
SECTION 5.10 Waiver of Past Defaults . . . . . . . . . . . 33
SECTION 5.11 Trustee to Give Notice of
Default, But May Withhold
in Certain Circumstances . . . . . . . . . . . 34
SECTION 5.12 Right of Court to Require
Filing of Undertaking to Pay Costs . . . . . . 34
ARTICLE SIX - CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the
Trustee; During Default; Prior to
Default . . . . . . . . . . . . . . . . . . . 34
SECTION 6.2 Certain Rights of the Trustee . . . . . . . . 35
SECTION 6.3 Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof . . . . . . . 36
SECTION 6.4 Trustee and Agents May Hold
Securities or Coupons; Collections,
etc. . . . . . . . . . . . . . . . . . . . . . 37
<PAGE> iv
SECTION 6.5 Monies Held by Trustee . . . . . . . . . . . . 37
SECTION 6.6 Compensation and Indemnification of
Trustee and Its Prior Claim . . . . . . . . . 37
SECTION 6.7 Right of Trustee to Rely on Officers'
Certificate, etc. . . . . . . . . . . . . . . 37
SECTION 6.8 Persons Eligible for Appointment as
Trustee . . . . . . . . . . . . . . . . . . . 38
SECTION 6.9 Resignation and Removal; Appointment
of Successor Trustee . . . . . . . . . . . . . 38
SECTION 6.10 Acceptance of Appointment
by Successor Trustee . . . . . . . . . . . . . 40
SECTION 6.11 Merger, Conversion,
Consolidation or Succession
to Business of Trustee . . . . . . . . . . . 41
SECTION 6.12 Preferential Collection of
Claims Against the Issuer . . . . . . . . . . 41
SECTION 6.13 Appointment of Authenticating Agent . . . . . 41
ARTICLE SEVEN - CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by
Securityholders . . . . . . . . . . . . . . . 42
SECTION 7.2 Proof of Execution of Instruments and
of Holding of Securities . . . . . . . . . . . 42
SECTION 7.3 Holders to be Treated as Owners . . . . . . . 43
SECTION 7.4 Securities Owned by Issuer and FCX
Deemed Not Outstanding . . . . . . . . . . . . 44
SECTION 7.5 Right of Revocation of Action Taken . . . . . 44
SECTION 7.6 Record Date for Consents and Waivers . . . . . 44
ARTICLE EIGHT - SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without
Consent of Securityholders . . . . . . . . . . 45
SECTION 8.2 Supplemental Indentures With Consent
of Securityholders . . . . . . . . . . . . . . 47
SECTION 8.3 Effect of Supplemental Indenture . . . . . . . 48
SECTION 8.4 Documents to Be Given to Trustee . . . . . . . 49
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures . . . . . . . . . . . 49
ARTICLE NINE - CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant of the Issuer Not to Merge,
Consolidate, Sell or Convey Property
Except Under Certain Conditions . . . . . . . 49
SECTION 9.2 Successor Entity Substituted . . . . . . . . . 49
SECTION 9.3 Assumption by FCX . . . . . . . . . . . . . . 50
SECTION 9.4 Opinion of Counsel to Trustee . . . . . . . . 50
<PAGE> v
ARTICLE TEN - SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONIES
SECTION 10.1 Satisfaction and Discharge
of Indenture . . . . . . . . . . . . . . . . 51
SECTION 10.2 Application by Trustee of
Funds Deposited for Payment
of Securities . . . . . . . . . . . . . . . . 55
SECTION 10.3 Repayment of Monies Held by
Paying Agent . . . . . . . . . . . . . . . . 55
SECTION 10.4 Return of Monies Held by
Trustee and Paying Agent
Unclaimed for Two Years . . . . . . . . . . . 55
SECTION 10.5 Indemnity for U.S.
Government Obligations . . . . . . . . . . . 56
ARTICLE ELEVEN - MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers
and Directors of Issuer and FCX Exempt
from Individual Liability . . . . . . . . . . 56
SECTION 11.2 Provisions of Indenture for
the Sole Benefit of Parties
and Securityholders . . . . . . . . . . . . . 56
SECTION 11.3 Successors and Assigns of Issuer and
FCX Bound by Indenture. . . . . . . . . . . . 56
SECTION 11.4 Notices and Demands on Issuer, FCX,
Trustee and Securityholders . . . . . . . . . 56
SECTION 11.5 Officers' Certificates and Opinions
of Counsel, Statements to Be
Contained Therein . . . . . . . . . . . . . . 57
SECTION 11.6 Payments Due on Saturdays,
Sundays and Legal Holidays . . . . . . . . . 58
SECTION 11.7 Conflict of Any Provision
of Indenture with Trust
Indenture Act of 1939 . . . . . . . . . . . . 58
SECTION 11.8 New York Law to Govern . . . . . . . . . . . 58
SECTION 11.9 Counterparts . . . . . . . . . . . . . . . . 59
SECTION 11.10 Effect of Headings . . . . . . . . . . . . . 59
SECTION 11.11 Securities in a Foreign Currency or
in ECU. . . . . . . . . . . . . . . . . . . . 59
SECTION 11.12 Judgment Currency . . . . . . . . . . . . . . 59
SECTION 11.13 Submission to Jurisdiction . . . . . . . . . 60
ARTICLE TWELVE - REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Application of Article . . . . . . . . . . . 61
SECTION 12.2 Notice of Redemption . . . . . . . . . . . . 61
SECTION 12.3 Payment of Securities
Called for Redemption . . . . . . . . . . . . 62
SECTION 12.4 Exclusion of Certain of
Securities from Eligibility
for Selection for Redemption. . . . . . . . . 63
SECTION 12.5 Mandatory and Optional
Sinking Funds . . . . . . . . . . . . . . . . 63
<PAGE> vi
ARTICLE THIRTEEN - FCX GUARANTEE OF SECURITIES
SECTION 13.1 Unconditional Guarantee . . . . . . . . . . . 65
SECTION 13.2 Execution of the FCX
Guarantee . . . . . . . . . . . . . . . . . . 66
ARTICLE FOURTEEN - COVENANTS OF FCX
SECTION 14.1 Covenant Not to Merge, Consolidate,
Sell or Convey Property Except Under Certain
Conditions. . . . . . . . . . . . . . . . . . 67
SECTION 14.2 Successor Corporation Substituted . . . . . . 67
SECTION 14.3 Written Statement to Trustee . . . . . . . . 68
SECTION 14.4 Reports by FCX . . . . . . . . . . . . . . . 68
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . 69
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . 69
ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . 70
<PAGE> vii
CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture Act of 1939, as amended, and the
Indenture to be dated as of April _____, 1996 among FCX Finance
Company B.V., Freeport-McMoRan Copper & Gold Inc., and
____________________, as Trustee:
Section of the Act Section of Indenture
310(a)(1), (2) and (5) . . . . . . . . . . . . . . . . . . . 6.8
310(a)(3) and (4) . . . . . . . . . . . . . . . . . Inapplicable
310(b) . . . . . . . . . . . . . . . . . . . 6.9(a), (b) and (d)
310(c) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) and (b) . . . . . . . . . . . . . . . . . . . . . . 6.12
311(c) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . . . 4.1 and 4.2(a)
312(b) . . . . . . . . . . . . . . . . . . . . . . . . . 4.2(b)
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . 4.2(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(a)
313(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . 4.4(b)
313(b) . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(b)
313(c) . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(c)
313(d) . . . . . . . . . . . . . . . . . . . . . . . . . 4.4(d)
314(a) . . . . . . . . . . . . . . . . . . 3.5, 4.3, 14.3, 14.4
314(b) . . . . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
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
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
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 11.7
*This Cross Reference Sheet is not part of the Indenture.
THIS INDENTURE, dated as of __________________________,
1996, among FCX Finance Company B.V., a Netherlands
corporation having its legal seat at Rotterdam, The
Netherlands (the "Issuer"), Freeport-McMoRan Copper & Gold
Inc. ("FCX"), a Delaware corporation, as Guarantor, and
____________________, a _________________ corporation, as
trustee (the "Trustee"),
WITNESSETH:
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 by 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;
WHEREAS, FCX has duly authorized the execution and
delivery from time to time of the FCX Guarantees and this
Indenture (the term "Securities" shall include the FCX
Guarantees, as the context requires); and
WHEREAS, all things necessary to make this Indenture a
valid indenture and agreement of the Issuer, FCX and the
Trustee 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, FCX 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 are defined in the Securities
Act and referred to in the Trust Indenture Act of 1939
(except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings
assigned to such terms in the Trust Indenture Act of 1939
and in the Securities Act as in force at the date of this
Indenture. All accounting terms used herein and not
expressly defined shall have the meanings given to them in
accordance with generally accepted accounting principles,
and the term "generally accepted accounting principles"
shall mean generally accepted accounting principles in the
United States which are in effect on the date or time of any
determination. 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 include the
plural as well as the singular.
"Authenticating Agent" shall have the meaning set
forth in Section 6.13.
"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
London, 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, London or 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.
"Authorized Signatory" means any of the chairman
of the Board of Directors, managing director, the president,
any vice president (whether or not designated by a number or
numbers or a word or words added before or after the title
"Vice President"), the treasurer or any assistant treasurer
or the secretary or any assistant secretary of any Person.
"Board of Directors" of any Person means the Board
of Directors (or other similar governing body) of such
Person, or any committee of such Board duly formed and
authorized to act on its behalf.
"Board Resolution" of any Person means a copy of
one or more resolutions, certified by the secretary or an
assistant secretary of such Person (or in the case of the
Issuer, a managing director) to have been duly adopted or
consented to by the Board of Directors of such Person and to
be in full force and effect, and delivered to the Trustee.
"Business Day" means, with respect to a Security,
a day that in the city (or in any cities, if more than one)
in which amounts are payable, as specified in the form of
such Security, which is not a day on which banking
institutions and trust companies are authorized by law or
regulation or executive order to close.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under
the Exchange Act, 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, the body performing such duties on such date.
"Company Order" means a written statement, request
or order of the Issuer or FCX which is signed in such
company's name by the chairman of the Board of Directors,
the president, any executive vice president, any senior vice
president or any vice president of FCX or any managing
director of the Issuer.
"Corporate Trust Office" means the office of the
Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered,
which office is, at the date as of which this Indenture is
dated, located at _________________________________________.
"Coupon" means any interest coupon appertaining to
a Security.
"Debt" shall have the meaning set forth in Section
5.1.
"Default" means any event which is, or after
notice or passage of time or both would be, an Event of
Default.
"Defeasance" shall have the meaning set forth in
Section 10.1.
"Depositary" means, with respect to the Securities
of any series issuable or issued in whole or in part in the
form of one or more Registered Global Securities, the Person
designated as the Depositary by the Issuer and FCX 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; provided that any Person that is
a Depositary hereunder must be a clearing agency registered
under the Exchange Act.
"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.
"Exchange Act" means the Securities and Exchange
Act of 1934, as amended.
"FCX" means Freeport-McMoRan Copper & Gold Inc., a
Delaware corporation, and, subject to Sections 14.1 and
14.2, its successors and assigns.
"FCX Guarantee" or "FCX Guarantees" means the
guarantee of FCX endorsed on the Securities of any series
authenticated and delivered pursuant to this Indenture.
"Foreign Currency" means a currency issued by the
government of a country other than the United States.
"Guarantee" means any obligation, contingent or
otherwise, of any Person directly or indirectly guaranteeing
any Indebtedness of any Person and any obligation, direct or
indirect, contingent or otherwise, of such person (i) to
purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness of such person (whether
arising by virtue of partnership arrangements, or by
agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered
into for purposes of assuring in any other manner the
obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in
whole or in part); provided, however, that the term
Guarantee shall not include endorsements for collection or
deposit in the ordinary course of business. The term
"Guarantee" used as a verb has a corresponding meaning.
"Guarantor" means FCX as guarantor under the FCX
Guarantee.
"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.
"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.
"Insolvency Law" means any Netherlands,
Indonesian, United States (Federal or State), or other
applicable bankruptcy, insolvency, reorganization or similar
law in any applicable jurisdiction.
"Interest" means, when used with respect to non-
interest bearing Securities, interest payable after
maturity.
"Interest Payment Date" when used with respect to
any Security, means the Stated Maturity of an installment of
interest on such Security.
"Issuer" means FCX Finance Company B.V., a
Netherlands corporation having its legal seat at Rotterdam,
and, subject to Article Nine, its successors and assigns.
"Judgment Currency" shall have the meaning set
forth in Section 11.12.
"Officers' Certificate" means, in the case of FCX,
a certificate signed by the chairman of the board or the
president or any vice president (whether or not designated
by a number or numbers or a word or words added before or
after the title "Vice President") and by the treasurer or
any assistant treasurer or the secretary or any assistant
secretary of FCX, and, in the case of the Issuer, a
certificate signed by a managing director, and in each case
delivered to the Trustee. Each such certificate shall
include the statements provided for in Section 11.5, if and
to the extent required hereby.
"Opinion of Counsel" means an opinion in writing
signed by legal counsel, who may be an employee of or
counsel to the Issuer or FCX, as applicable, or who may be
other counsel satisfactory to the Trustee. Each such
opinion shall include the statements provided for in Section
11.5, if and to the extent required hereby.
"Original issue date" of any Security (or portion
thereof) means the earlier of (a) the Issue Date of such
Security or (b) the Issue Date of any Security (or portion
thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or
substitution. For purposes of this definition, "Issue Date"
means the date of issue of any series of Securities under
this Indenture as more specifically stated on the reverse of
such Securities.
"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", when used with reference to
Securities of any series issued hereunder, shall, subject to
the provisions of Section 7.4, mean, as of any particular
time, all Securities of such series 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 monies 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 (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 Stated 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 (unless proof satisfactory to the
Trustee is presented that any of such Securities 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, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
"principal" whenever used with reference to the
Securities of any series or any portion thereof, shall be
deemed to include "and premium, if any".
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is to
be redeemed pursuant to this Indenture.
"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, which
Security shall be without Coupons.
"Required Currency" shall have the meaning set
forth in Section 11.12.
"Responsible Officer", when used with respect to
the Trustee means the Chairman of the Board of Directors,
the President, the Secretary, the Treasurer or any other
officer of the Trustee customarily performing corporate
trust functions.
"SEC Reports" shall have the meaning set forth in
Section 4.3.
"Securities Act" means the Securities Act of 1933,
as amended.
"Security" or "Securities" has the meaning stated
in the first recital of this Indenture and more particularly
means any Securities of any series, authenticated and
delivered under this Indenture.
"Security Registrar" means the Trustee or any
successor Security Registrar appointed by the Issuer.
"Stated Maturity" means, with respect to any
Security, the date specified in such Security as the fixed
date on which the principal of such security is due and
payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the
repurchase of such security at the option of the Holder
thereof upon the happening of any contingency unless such
contingency has occurred) and with respect to any
installment of interest upon such Security, the date
specified in such Security, or Coupon appertaining thereto,
if applicable as the fixed date on which such installment of
interest is due and payable.
"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 the
issuance of such series, or, if applicable, at the most
recent redetermination of interest on such series, and
calculated in accordance with generally accepted financial
practice.
ARTICLE TWO
ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
SECTION 2.1 Forms Generally. The Securities of each
series and the Coupons, if any, issued hereunder shall be
substantially in such form and bear such legends (not
inconsistent with this Indenture) as shall be established by
or pursuant to one or more Board Resolutions of the Issuer
(as set forth in a Board Resolution of the Issuer or FCX, as
the case may be, or, to the extent established pursuant to
rather than set forth in a Board Resolution of the Issuer or
FCX, as the case may be, an Officers' Certificate of the
Issuer or FCX, as the case may be, 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 of the Issuer and FCX such Securities and
Coupons, if any, as evidenced by their execution of such
Securities and Coupons, if any. If temporary Securities are
issued as permitted by Section 2.11, the form thereof also
shall be established as provided in the preceding sentence.
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.
_______________________________, 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.
____________________, N.A., Trustee
By:________________________________
As Authenticating Agent
By:_________________________________
Authorized Officer
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, and
the FCX Guarantees endorsed thereon shall rank equally and
pari passu with all other unsecured and unsubordinated
Indebtedness of FCX. 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 Officers' Certificate detailing such
establishment) or 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 12.2);
(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, the
Interest Payment Date on which any such interest shall
be payable and (in the case of Registered Securities)
the Regular Record Date for any interest payable on any
Interest Payment Date and/or the method by which such
rate or rates or Regular Record Date or Dates shall be
computed or determined;
(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, FCX or any
Holder to redeem or cause to be redeemed Securities of
the series, 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 or FCX
to redeem, purchase or repay Securities of the series,
in whole or in part, 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 the manner in which (if different from
the provisions of Article 12 hereof) 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, FCX 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 and the manner in which the
exchange rate with respect to such payments shall be
determined;
(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 and the
form of any legend in addition or in lieu of that in
Section 2.4 to be borne by such Registered Global
Security) or Unregistered Securities (with or without
Coupons), or any combination of the foregoing, any
restrictions and procedures applicable to the offer,
sale or delivery of Unregistered Securities or the
payment of interest thereon, if other than as provided
in Section 2.8, and the terms upon which Unregistered
Securities of any series may be exchanged for
Registered Securities of such series and vice versa if
other than provided in Section 2.8;
(15) whether and under what circumstances the
Issuer or FCX will pay additional amounts on the
Securities of the series to the Holders, or certain
Holders, thereof in respect of any tax, assessment or
governmental charge withheld or deducted and, if so,
whether the Issuer or FCX will have the option to
redeem such Securities rather than pay such additional
amounts (and the terms of any such option);
(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, depositaries, authenticating or
paying agents, transfer agents or registrars or any
other agents with respect to the Securities of such
series;
(18) any deletions from, modifications of or
additions to the Events of Default or covenants of the
Issuer or FCX set forth herein (including any defined
terms relating thereto);
(19) the term and condition upon which and the
manner in which Securities of the series may be
defeased or defeasible if different from the provisions
of Article 10;
(20) whether the Securities will be issued as
global Securities and, if other than as provided in
Section 2.8, the terms upon which such global
Securities may be exchanged for definitive Securities;
(21) offices at which presentation and demands may
be made and notices be served, if other than the
Corporate Trust Office; and
(22) 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
appertaining thereto, if any, 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 Officers' 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
Officers' Certificate or in any such indenture supplemental
hereto.
SECTION 2.4 Authentication and Delivery of
Securities. Upon the execution and delivery of this
Indenture, or from time to time thereafter, Securities,
including Coupons appertaining thereto, if any, may be
executed by the Issuer and, upon endorsement thereon of the
FCX Guarantees, delivered 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 and Coupons appertaining
thereto, if any, and the FCX Guarantees to or upon the order
of the Issuer (contained in the Company 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 a Company Order, without any
further action by the Issuer or FCX. 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 Company Order or procedures authorized by such Company
Order. If provided for in such procedures, such Company
Order may authorize authentication and delivery of
Securities 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) a Company Order requesting such authen-
tication 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 Company 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 a Company Order or pursuant to procedures
acceptable to the Trustee as may be specified from time
to time by a Company Order, (c) the maturity date or
dates, original issue date or dates or interest rate or
rates and any other terms of Securities of such series
shall be determined by a Company Order or pursuant to
such procedures and (d) if provided for in such
procedures, such Company Order may authorize
authentication and delivery of Securities pursuant to
oral or electronic instructions from the Issuer or its
duly authorized agent or agents, which oral or
electronic 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, Officers' 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 Officers' Certificate setting forth the
form or forms and terms of the Securities 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, and FCX Guarantees 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 and, if other than set
forth herein, the terms of the FCX Guarantees 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 and, if other than set forth herein,
the terms of the FCX Guarantees have been
established pursuant to a Board Resolution, an
Officers' 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 a Company Order shall have
been established, all such terms will have been
duly authorized by the Issuer or FCX 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 the FCX
Guarantees thereon executed by FCX 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 and FCX, respectively, 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
and FCX of, and the performance by the Issuer and
FCX of their respective obligations under the
Securities, the Coupons, if any, and the FCX
Guarantees, will not contravene any provision of
applicable law or the Articles of Association of
the Issuer or the certificate of incorporation or
by-laws of FCX or any agreement or other
instrument binding upon the Issuer, FCX or any of
the respective subsidiaries of the foregoing that
is material to the Issuer or FCX, each considered
as one enterprise with their respective
subsidiaries, or, to the best of such counsel's
knowledge but without independent investigation,
any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the
Issuer, FCX or any of their respective
subsidiaries, and no consent, approval or
authorization of any governmental body or agency
is required for the performance by the Issuer or
FCX of their respective 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
upon opinions of other counsel (copies of which shall be
delivered to the Trustee), who shall be counsel reasonably
satisfactory 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, FCX or any of their respective
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 FCX
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 and FCX shall establish pursuant to
Section 2.3 that all or a portion of 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, upon endorsement thereon of the FCX Guarantee, the
Trustee shall, in accordance with this Section 2.4 and the
Company 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 or a portion of the
Securities of such series issued and not yet cancelled or
exchanged 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 a nominee thereof or a
custodian therefor or pursuant to such Depositary's
instructions and (iv) shall bear a legend substantially to
the following effect: "This Security is a Registered Global
Security within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or
a nominee thereof. This Security may not be exchanged in
whole or in part for a Security registered, and no transfer
of this Security in whole or in part may be registered, in
the name of any Person other than such Depositary or a
nominee thereof, except in the limited circumstances
described in the Indenture."
SECTION 2.5 Execution of Securities. The Securities
and, if applicable, each Coupon appertaining thereto shall
be signed on behalf of the Issuer by any of its managing
directors. Such signature may be the manual or facsimile
signature of the present or any future such managing
director. Typographical and other minor errors or defects
in any such reproduction of 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 managing director of the Issuer who shall
have signed any of the Securities or Coupons, if any, shall
cease to be such managing director before the Security or
Coupon so signed 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 managing director of the
Issuer; and any Security or Coupon may be signed on behalf
of the Issuer by such Person as, at the actual date of the
execution of such Security or Coupon, shall be the proper
officer of the Issuer, although at the date of the execution
and delivery of this Indenture any such Person was not such
officer.
The FCX Guarantee endorsed on each Security shall be
executed by an Authorized Signatory of FCX in the manner
provided in Section 13.2.
SECTION 2.6 Certificate of Authentication. Only
such Securities as shall bear thereon a certificate of
authentication substantially in the form set forth in
Section 2.2, 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. Such certificate by the Trustee upon any Security
executed by the Issuer on which the FCX Guarantee executed
by FCX is endorsed shall be conclusive evidence that the
Security and Coupons, if any, appertaining thereto, so
authenticated have 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 managing directors of the Issuer 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 Board Resolution or
Resolutions or indenture supplemental hereto referred to in
Section 2.3 or, if not so specified, each such Unregistered
Security shall be dated as of the date of issuance of the
first Unregistered Security of such series to be issued.
The Securities of each series shall bear interest, if any,
from the date, and such interest shall be payable on the
Interest Payment 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 Regular
Record Date applicable to such 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 such Regular Record
Date and prior to such Interest Payment Date, except in the
case of any such transfer or exchange if and to the extent
the Issuer shall default in the payment of the interest due
on such Interest Payment Date for such series (and FCX does
not pay such installment on such Interest Payment Date), in
which case such defaulted interest shall then cease to be
payable to the Holder on such Regular Record Date by virtue
of having been such Holder and 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.
Interest on any Unregistered Securities which is payable,
and punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Holder of such
Unregistered Security or of the applicable Coupon
appertaining to such Unregistered Security.
SECTION 2.8 Registration, Transfer and Exchange.
The Issuer will cause to be kept at each 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 surrender for transfer of any Registered Security
of any series at any such office or agency to be maintained
for the purpose provided in Section 3.2, the Issuer and FCX
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 such series,
Stated Maturity, interest rate and original issue date in
any authorized denominations and of a like aggregate
principal amount and tenor, with the FCX Guarantee endorsed
thereon.
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, any Security may
be exchanged for a Security of the same series, of like
tenor, in authorized denominations and in an equal aggregate
principal amount, with the FCX Guarantee endorsed thereon,
upon surrender of such Security at an office or agency to be
maintained for such purpose in accordance with Section 3.2
or as specified pursuant to Section 2.3, and the Issuer
shall execute, and the Trustee shall authenticate and
deliver in exchange therefor, the Security or Securities,
with the FCX Guarantee endorsed thereon, which the Holder
making the exchange shall be entitled to receive bearing a
number or other distinguishing symbol not contemporaneously
outstanding. Subject to the foregoing, (i) a Registered
Security of any series (other than a Registered Global
Security, except as set forth below) may be exchanged for a
Registered Security or Securities of the same series; (ii)
if the Securities of any series are issued in both
registered and unregistered form, except as otherwise
specified pursuant to Section 2.3, Unregistered Securities
may be exchanged for a Registered Security or Securities of
the same series, but a Registered Security may not be
exchanged for an Unregistered Security or Securities; and
(iii) if Unregistered Securities of any series are issued in
more than one authorized denomination, except as otherwise
specified pursuant to Section 2.3, any such Unregistered
Security or Securities may be exchanged for an Unregistered
Security or Securities of the same series; provided that in
connection with the surrender of any Unregistered Securities
that have Coupons attached, all unmatured Coupons and all
matured Coupons in default must be surrendered with the
Securities being exchanged. If the Holder of an
Unregistered Security is unable to produce any such
unmatured Coupon or Coupons or matured Coupon or Coupons in
default, such exchange may be effected if the Unregistered
Securities are accompanied by payment in funds acceptable to
the Issuer in an amount equal to the face amount of such
missing Coupon or Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Issuer, FCX and the
Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any
paying agent harmless. If thereafter the Holder of such
Security shall surrender to any paying agent any such
missing Coupon in respect of which such a payment shall have
been made, such Holder shall be entitled to receive from the
Issuer the amount of such payment; provided, however, that,
except as otherwise provided in Section 3.2, interest
represented by Coupons shall be payable only upon the
presentation and surrender of those Coupons and an office or
agency located outside the United States. Notwithstanding
the foregoing, in case an Unregistered Security of any
series is surrendered at any such office or agency in
exchange for a Registered Security of the same series in
like tenor after the close of business at such officer
agency on (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant
Interest Payment Date, or (ii) any subsequent record date
and the before the opening of business at such office or
agency on such subsequent date for the payment of interest
in default, such Unregistered Security shall be surrendered
without the Coupon relating to such Interest Payment Date or
subsequent date for payment, as the case may be, and
interest or in interest in default, as the case may be, will
not be payable on such Interest Payment Date or subsequent
date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Unregistered
Security, but will be payable only to the Holder of such
Coupon when due in accordance with the provisions of this
Indenture. 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, repurchase 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.
Each Registered Global Security authenticated under
this Indenture shall be registered in the name of the
Depository designated for such Registered Global Security or
a nominee thereof, and each such Registered Global Security
shall constitute a single security for all purposes of this
Indenture.
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 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, (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 or (d) to exchange any Unregistered Security so
selected for redemption, except that such Unregistered
Security may be exchanged for a Registered Security of that
series and like tenor, provided that such Registered
Security shall be simultaneously surrendered for redemption.
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 is no longer eligible because it ceased to be
a clearing agency registered under the Exchange Act and the
Issuer thereupon fails to appoint a successor Depositary 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 Officers' 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,
with the FCX Guarantees endorsed thereon, of like tenor 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, with the FCX Guarantees endorsed thereon, 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 Officers'
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, with the FCX Guarantees endorsed
thereon, 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, with the FCX
Guarantee or Guarantees endorsed thereon; 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, with the FCX
Guarantee endorsed thereon.
Upon the exchange of a Registered Global Security for
Securities in definitive registered form without Coupons, in
authorized denominations, with the FCX Guarantee endorsed
thereon, 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 and the FCX Guarantees endorsed thereon
issued upon any transfer or exchange of Securities and the
related FCX Guarantees shall be valid and legally binding
obligations of the Issuer and FCX, respectively, evidencing
the same debt, and entitled to the same benefits under this
Indenture, as the Securities and FCX Guarantees surrendered
upon such transfer or exchange.
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 apparently destroyed, lost
or stolen, the Issuer in its discretion may execute, and
upon the written request of any officer of the Issuer, the
Trustee shall authenticate and deliver a new Security of the
same series, of like tenor and in equal aggregate principal
amount, with the FCX Guarantee endorsed thereon, 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 apparently destroyed, lost or stolen or in
exchange for the Security to which a mutilated, defaced,
destroyed, lost or stolen with Coupons corresponding to the
Coupons appertaining to the Securities for which substitutes
are being issued. 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 and
FCX harmless and, in every case of apparent destruction,
loss or theft, evidence to their satisfaction of the
apparent destruction, loss or theft of such Security or
Coupon and of the ownership thereof. In the case of a
mutilated or defaced Security or Coupon, the applicant for a
substitute Security or Coupon shall surrender such mutilated
or defaced Security or Coupon 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 apparently destroyed, lost or stolen, the Issuer may,
instead of issuing a substitute Security or Coupon, 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 or FCX may require to save each of
them harmless from all risks, however remote, arising as a
result of such payment and, in every case of apparent
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 apparent
destruction, loss or theft of such Security 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 apparently
destroyed, lost or stolen shall constitute an additional
contractual obligation of the Issuer and FCX, whether or not
the apparently 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 or 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 apparently destroyed, lost or stolen
Securities and Coupon 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, repurchase, 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 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
unless the Issuer shall direct that cancelled Securities be
returned to it. If the Issuer or FCX 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 for cancellation.
SECTION 2.11 Temporary Securities. Pending the
preparation of definitive Securities for any series, the
Issuer and FCX 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) with the FCX Guarantee endorsed thereon. 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, with the FCX
Guarantee endorsed thereon, 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, with the FCX Guarantee endorsed thereon, 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
3.2, 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, with the FCX Guarantee endorsed thereon,
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 definitive 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 issued hereunder 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 with respect to such Securities)
at the place or places, at the respective times and in the
manner provided in the Securities of such series 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 with respect to such
Securities) shall be payable only upon presentation and
surrender of the several Coupons for such interest
installments 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 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 entitled thereto 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 remain Outstanding, the Issuer
will maintain in the Borough of Manhattan, The City of New
York, an office or agency where the Registered Securities of
each series may be surrendered for payment and, where the
Registered Securities of each series may be surrendered for
registration of transfer or exchange as is provided in this
Indenture.
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 office or 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 surrendered
for payment or exchange. No payment on or exchange of any
Unregistered Security or Coupon will be made upon surrender
of such Unregistered Security or Coupon at an office or
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 Borough of Manhattan,
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 prompt written
notice of the location of any such office or agency and of
any change of location thereof. The Issuer hereby initially
designates the Corporate Trust Office of the Trustee
maintained in the City of New York as the office or agency
for each such purpose to be carried out in New York. In
case the Issuer shall fail to maintain any such office or
agency or shall fail to provide such notice of the location
or of any change in the location thereof, presentations and
demands may be made and notices may be served at the
Corporate Trust Office.
The Issuer will cause to be kept a register at the
office of the Security Registrar in which, subject to such
reasonable regulations as it may prescribe, the Issuer will
provide for the registration of Securities and of transfers
of Securities. The Trustee is hereby initially appointed
Security Registrar for the purpose of registering Securities
and transferring Securities as herein provided.
The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of any
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 3.2. 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 6.9, 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 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,
(c) that it will, at any time during the
continuance of any such failure, upon the written
request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such paying agent, and
(d) that it will in all respects comply with the
provisions of the Trust Indenture Act of 1939
applicable to 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, such sum to be held
as provided in the Trust Indenture Act of 1939, 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
until such sums shall be paid to such Persons or otherwise
disposed of as herein provided. 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 with respect to this Indenture 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 the Trustee on or before March 31 in
each year (beginning with March 31, 1997) a brief
certificate (which need not comply with Section 11.5) from
the Issuer, signed by its principal executive officer,
principal financial officer, or principal accounting
officer, stating that in the course of the performance by
the signer of his duties as an officer of the Issuer, he
would normally have knowledge of any Default or non-
compliance by the Issuer in the performance or fulfillment
of any covenant, agreement or condition of the Issuer,
contained in this Indenture, stating whether or not he has
knowledge of any such Default or non-compliance and, if so,
specifying each such Default or non-compliance of which the
signer has knowledge and the nature thereof.
SECTION 3.6 Corporate Existence. Subject to Article
Nine, the Issuer will do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence, rights and franchises; provided that
the Issuer shall not be required to preserve its corporate
existence or any such right or franchise if the Issuer shall
determine that the preservation thereof is no longer
desirable in the conduct of its business and that the loss
thereof is not disadvantageous in any material respect to
the Holders of any series of Securities.
SECTION 3.7 Limitation on Other Business Activities.
The Issuer will not lease or own any material facilities or
other property or engage in any material operations other
than the issuance and sale of the Securities, the
application of the proceeds thereof and taking such other
actions as are called for by this Indenture. The Issuer
will not issue its Capital Stock to any Person other than
FCX and the wholly-owned Subsidiaries of FCX.
SECTION 3.8 Luxembourg Publications. In the event
of the publication of any notice pursuant to Section 5.11,
6.9, 6.10, 8.2, 10.4, 12.2 or 12.5, the party making such
publication in 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 any Officers'
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 and FCX to Furnish Trustee
Information as to Names and Addresses of Securityholders.
The Issuer, FCX and any other obligor on the Securities each
covenants and agrees that it 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 Securities of each series:
(a) semiannually and not more than 15 days after
each Regular Record Date, 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 for such series.
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
Securities (i) contained in the most recent list furnished
to the Trustee as provided in Section 4.1, (ii) received by
the Trustee in its capacity as Security Registrar for such
series, if so acting, and (iii) filed with it within two
preceding years pursuant to Section 4.4(c). The Trustee may
destroy any list furnished to it as provided in Section 4.1
upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with
other Holders with respect to their rights under this
Indenture or under any series of the Securities, and the
corresponding rights and duties of the Trustee, shall be as
provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and
holding the same, agrees with the Issuer, FCX and the
Trustee that none of the Issuer, FCX or the Trustee or any
agent of any of the foregoing shall be held accountable by
reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture
Act.
SECTION 4.3 Reports by the Issuer. The Issuer shall
file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided
pursuant to such Act, provided that any such information,
documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange
Act ("SEC Reports"), if any, shall be filed with the Trustee
within 15 days after the same is so required to be filed
with the Commission.
SECTION 4.4 Reports by the Trustee. (a) Within 60
days after _________ of each year, commencing with the first
_____ following the first issuance of Securities pursuant to
Section 2.4, if required by Section 313(a) of the Trust
Indenture Act, the Trustee shall transmit, pursuant to
Section 313(c) of the Trust Indenture Act, a brief report
dated as of such ______ with respect to any of the events
specified in said Section 313(a) which may have occurred
since the later of the immediately preceding
_____________________ and the date of this Indenture.
(b) The Trustee shall transmit the reports
required by Section 313(b) of the Trust Indenture Act and
Section 5.11 hereof at the times specified therein.
(c) Reports pursuant to this Section shall be
transmitted in the manner and to the Persons required by
Section 313(c) and 313(d) of the Trust Indenture Act.
(d) A copy of each such report shall, at the time
of such transmission to Holders, be filed by the Trustee
with each stock exchange upon which the Securities of any
series are listed, with the Commission and with the Issuer.
The Issuer will promptly notify the Trustee when the
Securities of any series are listed on any stock 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 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 or
any Coupon appertaining thereto (together with any
additional amounts payable with respect to such
Securities) 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 their Stated Maturity, upon any redemption by
declaration or otherwise; provided that, if such
default is the result of an optional redemption by the
Holders of such Securities, the amount thereof shall be
in excess of $50,000,000 or the equivalent thereof in
any currency or composite currency; or
(c) failure on the part of the Issuer or FCX duly
to comply with, observe or perform any of the other
covenants or agreements on the part of the Issuer or
FCX contained in, or provisions of, the Securities of
any series, the FCX Guarantees or this Indenture (other
than a covenant or agreement which is not applicable to
the Securities of such series), but only if such
default shall not have been remedied 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 or
FCX, as applicable, remedy the same, shall have been
given by registered or certified mail, return receipt
requested, to the Issuer and FCX by the Trustee, or to
the Issuer and FCX and the Trustee by the Holders of at
least 25% in aggregate principal amount of the
Outstanding Securities of either series of Securities;
or
(d) The FCX Guarantee endorsed on the Securities
of any series shall cease for any reason to be in full
force and effect or FCX shall assert that the FCX
Guarantee is not in full force and effect; or
(e) the entry by a court having jurisdiction in
the premises of (A) a decree or order for relief in
respect of the Issuer or FCX in an involuntary case or
proceeding under any applicable Insolvency Law or (B) a
decree or order adjudging the Issuer or FCX a bankrupt
or insolvent under an applicable Insolvency Law, or
appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the
Issuer or FCX or of any substantial part of the
property of the Issuer or FCX or ordering the winding
up or liquidation of the affairs of the Issuer or FCX
and the continuance of any such decree or order for
relief or any such other decree or order unstayed and
in effect for a period of 60 consecutive days; or
(f) the commencement by the Issuer or FCX of a
voluntary case or proceeding under any applicable
Insolvency Law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by
the Issuer or FCX to the entry of a decree or order for
relief in respect of the Issuer or FCX in an
involuntary case or proceeding under any applicable
Insolvency Law or to the commencement of any bankruptcy
or insolvency case or proceeding against the Issuer or
FCX or the filing by the Issuer or FCX of a petition,
answer or consent seeking reorganization or relief
under any applicable Insolvency Law, or the consent by
the Issuer or FCX to the filing of such petition or to
the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Issuer or FCX or of any
substantial part of the property of the Issuer or FCX
or the making by the Issuer or FCX of an assignment for
the benefit of creditors, or the admission by the
Issuer or FCX in writing of its inability to pay its
debts generally as they become due, or the taking of
corporate action (which shall involve the passing of
one or more Board Resolutions by the Issuer or FCX) in
furtherance of any such action,
(g) failure by the Issuer or FCX 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.
the FCX Guarantees or nonrecourse obligations) of, or
guaranteed or assumed by, the Issuer or FCX for
borrowed money or evidenced by bonds, debentures, notes
or other similar instruments ("Debt") 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 and FCX by the Trustee, or to the Issuer,
FCX and the Trustee by the holders of not less than 25%
in aggregate principal amount of the Outstanding
Securities of such series affected thereby; or
(h) 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 Debt 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 and FCX by the Trustee, or to
the Issuer, FCX and the Trustee by the holders of not
less than 25% in aggregate principal amount of the
Outstanding Securities of such series affected thereby;
or
(i) any other Event of Default provided for with
respect to Securities of that series in the
supplemental indenture under which such series is
issued or in the terms of Securities of 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, waived, rescinded or annulled without
further action on the part of either the Trustee or any of
the Securityholders.
If an Event of Default described in other than those
specified in Section 5.1(e) or (f) (if the Event of Default
under clause (c), (g) or (h), as the case may be, is with
respect to less than all series of Securities then
Outstanding) occurs and is continuing, 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 each
such affected series then Outstanding hereunder (voting as a
single class) 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 any such affected 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 all such affected series, and
the interest accrued thereon, if any, (together with any
additional amounts payable with respect to such Securities)
to be due and payable immediately, and upon any such
declaration, the same shall become immediately due and
payable. If an Event of Default other than those specified
in Section 5.1(e) or (f) (if the Event of Default under
clause (c), (g) or (h), as the case may be, is with respect
to all series of Securities then Outstanding), occurs and is
continuing, then and in each and every such case, unless the
principal of all the Securities shall have already become
due and payable, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of all the
Securities then Outstanding hereunder (treated as one
class), by notice in writing to the Issuer (and to the
Trustee if given by Securityholders), may declare the entire
principal (or, if any Securities are Original Issue Discount
Securities, such portion of the principal as may be
specified in the terms thereof) of all the Securities then
Outstanding, and interest accrued thereon, if any, (together
with any additional amounts payable with respect to such
Securities) to be due and payable immediately, and upon any
such declaration the same shall become immediately due and
payable. If an Event of Default specified in Section 5.1(e)
or (f) occurs, the principal of and accrued interest on the
Securities shall become and be immediately due and payable
without any declaration or other act on the part of the
Trustee or any Securityholder.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if
the Securities of such series 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 monies
due shall have been obtained or entered as hereinafter
provided, the Issuer or FCX shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured installments
of interest (together with any additional amounts payable
with respect to such Securities) upon all the Securities of
such series and the principal of any and all Securities of
each 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,
(together with any additional amounts payable with respect
to such Securities) 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 each such series
(or the respective rates of interest or Yields to Maturity
of all the Securities, as the case may be, 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 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 each such series
or of all the Securities, in each case voting as a single
class, then Outstanding, by written notice to the Issuer,
FCX and 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 accrued 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 Debt 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 the
Stated 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 such Securities of such series, and such
Coupons, if any, 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 principal of
and interest on Securities of such series be overdue.
Without limiting the rights of the Trustee under the
FCX Guarantee, if an Event of Default occurs and is
continuing, 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 to
protect and enforce its rights and the rights of the Holders
by such appropriate judicial proceeding as the Trustee may
deem most effectual to protect and enforce any such rights,
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 any other obligor upon the
Securities of such series and collect in the manner provided
by law out of the property of the Issuer or any other
obligor upon the Securities of such series, wherever
situated the monies adjudged or decreed to be payable.
In the case of any judicial proceeding relating to the
Issuer, FCX or any other obligor upon the Securities of such
series, or the property or creditors of the Issuer, FCX or
any such obligor, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise,
to take any and all actions authorized under the Trust
Indenture Act of 1939 in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In
addition, unless prohibited by applicable law and
regulations, the Trustee shall be entitled and empowered to
vote on behalf of the Holders of Securities of any series in
any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy
or insolvency proceeding or a Person providing similar
functions in comparable proceedings.
The Trustee shall be authorized to collect and receive
any monies 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 and all other amounts due to the
Trustee or any predecessor Trustee pursuant to Section 6.6.
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 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 series, may be prosecuted and
enforced by the Trustee without the possession of any of the
Securities of such series or Coupons appertaining to such
series or the production thereof on any trial or other
proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any
recovery of judgment, subject to the payment of the
expenses, disbursements, advances 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 of such series or Coupons
appertaining thereto in respect of which 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 of 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 monies
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 monies on account of principal or
interest, upon presentation of the several Securities and
Coupons appertaining thereto in respect of which monies have
been collected and stamping (or otherwise noting) thereon
the payment, or issuing Securities of the same series, of
like tenor, 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 the Securities of such series in
respect of which monies have been collected,
including any and all amounts due the Trustee
under Section 6.6;
SECOND: In case the principal of the
Securities of such series in respect of which
monies 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
monies 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
monies 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 or any Securityholder
shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued
or abandoned for any reason, or shall have been determined
adversely to the Trustee or to such Securityholder, then and
in every such case, subject to any determination in such
proceeding, the Issuer, FCX, the Trustee and the
Securityholders shall be restored severally and respectively
to their former positions and rights hereunder, and
thereafter all rights, remedies and powers of the Issuer,
FCX, 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, judicial or otherwise, 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 (i) such
Holder previously shall have given to the Trustee written
notice of a continuing Event of Default as hereinbefore
provided, (ii) the Holders of not less than 25% in aggregate
principal amount of the Securities of such affected series
then Outstanding, treated as a single class, 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; (iii) 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
proceedings; and (iv) 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 of the Securities
of such series or Coupons and the Trustee, that no one or
more Holders of Securities of such series shall have any
right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice
the rights of any other Holder of Securities or 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
(together with any additional amounts payable with respect
to such Securities) such Security or Coupon and any interest
in respect of a Default in the payment of any such amounts,
on or after the respective due dates expressed in such
Security or Coupon or Redemption Dates prescribed for
therein, or to institute suit for the enforcement of any
such payment rights 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
Section 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
any of the 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 Securityholders. 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 exercising any remedy
available to the Trustee, or exercising any trust or power
conferred on the Trustee by this Indenture with respect to
or for the benefit of such Securities of such series;
provided that such direction shall not be otherwise than in
accordance with applicable 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 be lawfully taken or that the
action or proceeding so directed may expose the Trustee to
personal liability or if the Trustee in good faith by its
board of directors or the executive committee thereof shall
so determine that the actions or forbearances 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 forbearances 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 by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the
Securities of any series 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 the
Securities of such series waive any past Default or Event of
Default hereunder with respect to the Securities of such
series and its consequences, except a Default (a) in the
payment of principal or interest on any Security of such
series or in respect to the conversion of any such
Securities or (b) in respect of a covenant or provision
hereof which cannot be modified or amended without the
consent of the Holder of each Security affected.
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. In the case of any
such waiver, the Issuer, FCX, the Trustee and the Holder 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.
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 3.8, at
least once in an Authorized Newspaper in Luxembourg) and
(ii) to all Holders of Securities of such affected series in
the manner and to the extent provided in Section 4.4(c),
unless such defaults shall have been cured before the
mailing or publication of such notice (the term "default" or
"defaults" for the purposes of this Section 5.11 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.
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 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 other than the Trustee 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
including the Trustee, 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
Outstanding, 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 particular series has
occurred (which has not been cured or waived) the Trustee
shall exercise 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 willful
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,
certificates 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 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 from the Issuer or FCX 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, Officers' Certificate or any other
certificate, statement, instrument, opinion, report,
notice, request, direction. 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 or FCX mentioned herein shall be
sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein
specifically prescribed), and any Board Resolution of
the Issuer or FCX may be evidenced to the Trustee by a
copy thereof certified by any managing director of the
Issuer, in the case of a Board Resolution of the
Issuer, and by the secretary or assistant secretary of
FCX in the case of a Board Resolution of FCX;
(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, suffered 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 then Outstanding of the one or more
series to which the Event of Default relates; 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 examination 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 FCX, 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. 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, FCX 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
Section 6.12, if operative, may otherwise deal with the
Issuer and FCX and receive, collect, hold and retain
collections from the Issuer and FCX with the same rights it
would have if it were not the Trustee or such agent.
SECTION 6.5 Monies Held by Trustee. Subject to the
provisions of Section 10.4 hereof, all monies 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
monies received by it hereunder.
SECTION 6.6 Compensation and Indemnification of
Trustee and Its Prior Claim. The Issuer and FCX, jointly
and severally, covenant and agree 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 and FCX, jointly and
severally, covenant and agree 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
and FCX, jointly and severally, also covenant 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 but not limited to the costs and
expenses of defending itself against or investigating any
claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The
obligations of the Issuer and FCX 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 payment of principal of or interest on particular
Securities or Coupons, and the Securities are hereby
subordinated to such senior claim. When the Trustee incurs
expenses or renders services in connection with an Event of
Default specified in Section 5.1 or in connection with
Article Five hereof, the expenses (including the reasonable
fees and expenses of its counsel) and the compensation for
the services in connection therewith are intended to
constitute expenses of administration under any bankruptcy
law.
SECTION 6.7 Right of Trustee to Rely on Officers'
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 Officers' Certificate of the
Issuer or FCX 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 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 $50,000,000, 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 the common control with any obligor
upon any Securities issued hereunder. 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 6.9.
The provisions of this Section 6.8 are in furtherance
of and subject to Section 310(a) of the Trust Indenture Act
of 1939.
SECTION 6.9 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. 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 of the
Issuer, 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 giving 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 310(b) of the Trust
Indenture Act of 1939 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 for at least six
months; or
(ii) the Trustee shall cease to be eligible
in accordance with the provisions of Section 6.8 or
Section 310(a) of the Trust Indenture Act of 1939 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 Issuer, 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 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 such series and appoint a successor trustee with
respect to 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 6.9 shall become
effective upon acceptance of appointment by the successor
trustee as provided in Section 6.10.
(e) The Issuer shall give notice of each
resignation and each removal of the Trustee of each series
of Securities and each appointment of a successor trustee
with respect to any such series by mailing written notice of
such an event by first-class mail, postage prepaid, to the
Holders of Registered Securities of such series as their
names and addresses appear in the Security register. If any
Unregistered Securities of a series affected are then
Outstanding, notice of such resignation shall be given to
the Holders thereof, (i) 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 3.8, at least once in
an Authorized Newspaper in Luxembourg) and (ii) by mailing
notice to those Holders of Unregistered Securities who have
furnished their names and addresses to the Trustee for such
purpose within the two years preceding the giving of such
notice. Each notice shall include the name of the successor
trustee for such series and the address of its principal
corporate trust office.
SECTION 6.10 Acceptance of Appointment by Successor
Trustee. Any successor trustee appointed as provided in
Section 6.9 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 shall become effective
and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers,
duties and obligations of its predecessor hereunder with
respect to such series, 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 monies 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 as such shall,
nevertheless, retain a prior claim upon all property or
funds held or collected by it to secure any amounts then due
to 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,
FCX, 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 6.10 unless at the time of such acceptance such
successor trustee shall be qualified under the provisions of
Section 310(b) of the Trust Indenture Act of 1939 and
eligible under the provisions of Section 6.8 and Section
310(a) of the Trust Indenture Act of 1939.
Upon acceptance of appointment by a successor trustee
as provided in this Section 6. 10, the Issuer shall (i) mail
notice thereof by first-class mail to the Holders of
Registered Securities at their last addresses as they shall
appear in the Security register, or (ii) in the case of
Holders of Unregistered Securities, publish such notice 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 3.8, at
least once in an Authorized Newspaper in Luxembourg) and
mail such notice to those Holders of Unregistered Securities
who have filed their names and addresses with the Trustee
for such purpose within two years preceding the giving of
such notice. 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 6.9. If the Issuer
fails to provide such notice within 10 days after acceptance
of appointment by the successor trustee, the successor
trustee shall cause such notice to be provided at the
expense of the Issuer.
SECTION 6.11 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 of 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 310(b) of the Trust Indenture Act of
1939 and eligible under the provisions of Section 6.8 and
Section 310(a) of the Trust Indenture Act of 1939, 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 6.12 Preferential Collection of Claims
Against the Issuer. If and when the Trustee shall be or
become a creditor of the Issuer or FCX (or any other obligor
upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the
collection of claims against the Issuer or FCX (or any such
other obligor).
SECTION 6.13 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, including
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
6.13 with respect to one or more series of Securities, the
Trustee may upon receipt of a Company Order appoint a
successor Authenticating Agent which shall be acceptable to
the Issuer 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, as agent of the Trustee,
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 Securityholders of
any or all series may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by
such 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 such 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, the Issuer and FCX, 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 or his agent or proxy of any instrument, or the
authority of such an agent or proxy to execute such
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 instru-
ments 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 con-
tinue 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. Prior
to surrender of a Security for registration of transfer, the
Issuer, FCX, the Trustee and any agent of the Issuer, FCX or
the Trustee may deem and treat the Person in whose name any
Registered Security shall be registered upon the Security
register 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, FCX nor the Trustee nor
any agent of the Issuer, FCX or the Trustee shall be
affected by any notice to the contrary. The Issuer, FCX,
the Trustee and any agent of the Issuer, FCX 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, FCX, the
Trustee nor any agent of the Issuer, FCX or the Trustee
shall be affected by 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
monies payable upon any such Unregistered Security or
Coupon.
SECTION 7.4 Securities Owned by Issuer or FCX Deemed
Not Outstanding. In determining whether the Holders of the
requisite aggregate principal amount of Outstanding
Securities have concurred in any direction, consent or
waiver under this Indenture, Securities which are owned by
the Issuer, FCX or any other obligor on the Securities 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 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 of
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 Officers' Certificate listing and identifying
all Securities, if any, known by the Issuer to be owned or
held by or for the account of any of the above-described
Persons; and, subject to Sections 6.1 and 6.2, the Trustee
shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of
the fact that all Securities not listed therein are
Outstanding for the purpose of any such determination.
SECTION 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 or
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, FCX, the Trustee and the Holders of all the
Securities.
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 Persons entitled to (i) waive any past
Default with respect to the Securities of such series in
accordance with Section 5.10, (ii) consent to any
supplemental indenture in accordance with Section 8.2 of
this Indenture or (iii) waive compliance with any term,
condition or provision of any covenant hereunder (if this
Indenture should expressly provide for such waiver). 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, consent to any
such supplemental indenture or waive compliance with any
such term, condition or provision, 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 90th 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.
The Trustee may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities
of any series entitled to join in the giving or making of
(i) any notice of Default, (ii) any request to institute
proceedings referred to in Section 5.6 or (iii) any
direction referred to in Section 5.9, in each case with
respect to Securities of such series. If any record date is
set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other
Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such
Holders remain Holders after such record date; provided that
no such action shall be effective hereunder unless taken on
or prior to the applicable expiration date by Holders of the
requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new
record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon
the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and
nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite
principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee,
at the Issuer's expense, shall cause notice of such record
date, the proposed action by Holders and the applicable
expiration date to be given to the Issuer and FCX in writing
and to each Holder of Securities of the relevant series in
the manner set forth in Section 11.4.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent
of Securityholders. The Issuer and FCX when authorized by
Board Resolutions of their respective Boards of Directors,
(which Resolutions 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 a Company 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 FCX or successive successions, and the
assumption by the successor entity of the respective
covenants, agreements and obligations of the Issuer or
FCX as applicable, under this Indenture or any
supplemental indenture;
(c) to add to the covenants of the Issuer or FCX
such further covenants, restrictions, conditions or
provisions or to surrender any right, power or option
conferred by this Indenture on the Issuer or FCX as the
respective Boards of Directors and the Trustee shall
consider to be for the protection or benefit of the
Holders of all or any series of Securities or Coupons
of any series (and if such covenants are to be for the
benefit of less than all series of Securities, stating
that such covenants are being added solely for the
benefit of such series), 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, condition 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 in regard to matters or questions under this
Indenture or any supplemental indenture as the Issuer
or FCX may deem necessary or desirable, provided, that
no action under this clause (d) 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;
(f) to make any change to comply with any
requirement of the Commission in connection with the
qualification of the Indenture under the Trust
Indenture Act of 1939, as amended;
(g) 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; and
(h) to allow FCX to directly assume, pursuant to
Section 9.3, the due and punctual payment of the
principal of and interest on all the Securities of any
or all series and the performance of the covenants in
the Indenture on the part of the Issuer to be performed
or observed.
The Trustee is hereby authorized to join with the
Issuer and FCX 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, immunities
or liabilities 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 Issuer and FCX, when authorized by Board
Resolutions of their respective Boards of Directors, (which
Resolutions 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 a
Company 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 alter the method of computation) of interest
thereon, or reduce (or alter the method of computation) any
amount payable on redemption or repayment thereof or extend
the time for payment thereof, or make the principal thereof
(including any amount in respect of original issue
discount), or interest (together with any additional amounts
payable with respect to such Security) 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, (b) reduce the
aforesaid percentage of principal amount of Securities of
any series the consent of the Holders of which is required
for any such supplemental indenture to less than a majority,
or reduce the percentage of Securities of such series
necessary to consent to waive any past Default under this
Indenture to less than a majority, or modify any of the
provisions of this Section or Section 5.10, except to
increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or
waived, in each case, without the consent of the Holder of
each Security so affected, or (c) change in any manner
adverse to the interests of the Holders of any Securities of
any series the terms and conditions of the obligations of
FCX pursuant to the FCX Guarantee without the consent of the
Holder of each Security of such series then Outstanding 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 of Coupons
appertaining to such Securities, or which modifies the
rights of Holders of Securities of such series 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 Issuer and FCX, accompanied by
copies of Board Resolutions of the Board of Directors of
each of the Issuer and FCX (which resolutions 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 a Company Order) certified by
any managing director of the Issuer and the secretary or an
assistant secretary of FCX authorizing the execution of any
such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Securityholders and
other documents, if any, required by Section 7.1 the Trustee
shall join with the Issuer and FCX in the execution of such
supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties, immunities or
liabilities 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, FCX, and
the Trustee of any supplemental indenture pursuant to the
provisions of this Section, the Issuer shall give notice
thereof setting forth in general terms the substance of such
supplemental indenture, (i) to the Holders of the
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 for such purpose within two years preceding the
giving of such notice, by mailing a notice thereof by first-
class mail to such Holders at such addresses as were so fur-
nished to the Trustee and (iii) if any Unregistered
Securities of a series affected thereby are then Out-
standing, 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 3.8, at least once in an Authorized Newspaper in
Luxembourg). 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, FCX, 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 Officers' Certificate and an Opinion of
Counsel as conclusive evidence of any series that any such
supplemental indenture complies with the applicable
provisions of this Indenture and that the execution of such
supplemental indenture is authorized or permitted by 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 respective
Boards of Directors of the Issuer and FCX, to any
modification of this Indenture contained in any such
supplemental indenture may be prepared by the Issuer with
the FCX Guarantee endorsed thereon, 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 of the Issuer Not to Merge,
Consolidate, Sell or Convey Property Except Under Certain
Conditions. The Issuer covenants that it will not merge
with or into or consolidate with any Person or sell, convey,
transfer, lease or otherwise dispose of all or substantially
all of its assets to any Person and the Issuer shall not
permit any Person to consolidate with or merge into the
Issuer or sell, convey, transfer, lease or otherwise dispose
of all or substantially all of its assets to the Issuer,
unless (i) either the Issuer (in the case of a merger) shall
be the continuing corporation, or the successor corporation
or the Person which acquires by sale, conveyance, transfer,
lease or disposition all or substantially all of the assets
of the Issuer (if other than the Issuer) shall be a
corporation organized under the laws of the United States of
America or any State thereof or the District of Columbia, or
under the laws of The Netherlands, and shall expressly
assume, by supplemental indenture, in form satisfactory to
the Trustee, executed and delivered to the Trustee by such
corporation pursuant to Article Eight hereof, all of the
payment obligations of the Issuer pursuant to this Indenture
and the Securities of all series and Coupons, if any,
appertaining thereto; (ii) immediately after giving effect
to such merger, consolidation, sale, conveyance, transfer,
lease or disposition and treating any Debt which becomes an
obligation of the Issuer as a result of such transaction as
having been incurred by the Issuer at the time of such
transaction, no Default or Event of Default shall have
occurred and be continuing.
SECTION 9.2 Successor Corporation Substituted. In
case of any such consolidation, merger, sale, conveyance,
transfer, lease or disposition, and following such an
assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the
Issuer, with the same effect as if it had been named herein.
Except as provided in the last paragraph of this Section,
when the successor entity assumes all obligations of the
Issuer hereunder, all obligations and covenants of the
Issuer hereunder or under the Securities shall terminate.
Such successor corporation 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 theretofore shall not have been
signed by the Issuer and delivered to the Trustee; and, upon
the order of such successor corporation, 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 and Coupons
appertaining thereto, if any, with the FCX Guarantee
endorsed thereon which previously shall have been signed and
delivered by the managing directors of the Issuer to the
Trustee for authentication, and any Securities together with
any Coupons appertaining thereto which such successor
corporation 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,
conveyance, transfer, lease or disposition such changes in
phraseology 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 sale, conveyance, transfer or
disposition (other than a conveyance by way of lease)
covered by this Section 9.2, the Issuer (or any successor
corporation 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 Assumption by FCX. Notwithstanding
anything in this Article Nine to the contrary, FCX may at
any time, in its sole discretion, directly assume, by an
indenture supplemental hereto, the due and punctual payment
of the principal of and interest on all the Securities of
any series and the performance of every covenant of this
Indenture on the part of the Issuer to be performed or
observed and upon any such assumption under this Section
9.3, FCX shall succeed to and be substituted in all respects
for and may exercise every right and power of the Issuer
under this Indenture with the same effect as if FCX had been
named as the Issuer herein and the Issuer shall be released
from all of its obligations hereunder and under the
Securities; provided, that the covenants that were
applicable to FCX as a guarantor under this Indenture prior
to such assumption shall continue to be applicable to FCX
after such assumption. No such assumption shall be
permitted unless FCX has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel for FCX,
each stating that such assumption and supplemental indenture
comply with this Article.
SECTION 9.4 Opinion of Counsel to Trustee. The
Trustee, subject to the provisions of Sections 6.1 and 6.2,
may receive an Opinion of Counsel prepared in accordance
with Section 11.5 as conclusive evidence that any such
consolidation, merger, sale, transfer, 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 MONIES
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 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), as and when the same shall have become due and
payable, or (b) the Issuer shall have delivered to the
Trustee for cancellation all Securities of such series
theretofore authenticated and all unmatured Coupons
appertaining thereto (other than any Securities and Coupons
appertaining thereto of such series which shall have been
destroyed, lost or stolen and which shall have been replaced
or paid as provided in Section 2.9) or (c) provided that FCX
has theretofore assumed the obligations of the Issuer under
the Indenture and the Securities of such series as provided
in Section 9.3 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 (x) shall have
become due and payable or (y) 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 monies repaid by the Trustee or
any paying agent to the Issuer in accordance with Section
10.4) or specifically pledged as security for and dedicated
solely to the benefit of the Holders of the Securities of
such series and Coupons appertaining thereto, (x) cash in an
amount, or (y) 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 not
later than one day before the due date of payments in
respect of the Securities, or (z) a combination thereof,
sufficient (without investment of such cash or reinvestment
of any interest or proceeds from such U.S. Government
Obligations) in the opinion of a nationally recognized firm
of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay the
principal of and interest on all Securities of such series
and Coupons appertaining thereto on each date that such
principal or interest is due and payable (whether at
maturity of through operation of a mandatory sinking fund
other than any redemption at the option of the Holder); and
if, in any such case, the Issuer shall also pay or cause to
be paid all other sums payable hereunder by the Issuer, all
of the Securities of such series and any Coupons
appertaining thereto shall be deemed paid and discharged and
the provisions of this Indenture with respect to such
Securities and Coupons, shall cease to be of further effect
(except as to (i) rights of registration of transfer and
exchange of Securities of such series or Coupons
appertaining thereto, and the Issuer's right of optional
redemption, if any, (ii) substitution of mutilated, defaced
or apparently destroyed, lost or stolen Securities or
Coupons, (iii) rights of the Holders of Securities and
Coupons appertaining thereto to receive from the property so
deposited payments of principal thereof and interest on the
original stated due dates therefor (but not upon
acceleration) or the Redemption Date therefor, as the case
may be and remaining rights of Holders to receive mandatory
sinking fund payments, if any, (iv) the rights, obligations
and immunities of the Trustee hereunder, including any right
to compensation, reimbursement of expenses and
indemnification under Section 6.6, (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
Sections 3.2), and the Trustee, on demand of the Issuer
accompanied by an Officers' Certificate and an Opinion of
Counsel, which complied with Section 11.5, stating that the
provisions of this Section have been complied with 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. In addition, in connection with the satisfaction
and discharge pursuant to clause (c)(i)(y) above, the
Trustee shall give notice to the Holders of Securities of
such satisfaction and discharge. 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,
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Issuer and FCX to the
Trustee under Section 6.6 shall survive.
(B) The following provisions shall apply to the
Securities of each series unless specifically otherwise
provided in a Board Resolution of the Board of Directors of
the Issuer, Officers' Certificate of the Issuer or indenture
supplemental hereto provided pursuant to Section 2.3. In
addition to discharge of the Indenture pursuant to Section
10.1(A), in the case of any such series of Securities the
exact or maximum amounts (including the currency of payment)
of principal and interest due on which can be determined at
the time of making the deposit referred to in Clause
10.1(B)(x)(a) below: (x) the Issuer shall be deemed to have
paid and discharged the entire indebtedness on all
Securities of such a series and the Coupons appertaining
thereto on the 91st day after the date of the deposit
referred to in Clause 10.1(B)(x)(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
Coupons appertaining thereto and the Issuer's right of
optional redemption, if any, (ii) substitution of mutilated,
defaced or apparently destroyed, lost or stolen Securities
or Coupons, (iii) rights of Holders of Securities or Coupons
appertaining thereto to receive from the property so
deposited payments of principal thereof and interest thereon
on the original stated due dates therefor (but not on
acceleration) or the Redemption Date therefor, as the case
may be, 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,
including any right to compensation, reimbursement of
expenses and indemnification under Section 6.6, (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 and the rights of the Holders of the Securities
under Sections 3.2), (hereinafter "defeasance"), and the
Trustee, at the expense of the Issuer, shall at the Issuer's
request, execute proper instruments acknowledging the same,
if the Issuer notifies the Trustee that the provisions of
this Section 10.1(B) are being complied with solely to
effect a defeasance and if
(a) provided that FCX has theretofore assumed the
obligations of the Issuer under the Indenture and the
Securities as provided in Section 9.3, with reference
to this provision the Issuer has irrevocably deposited
or caused to be irrevocably deposited with the Trustee
as trust funds in trust for the purpose of making the
following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the
Holders of 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 in Dollars, U.S. Government
Obligations, maturing as to principal and interest at
such times and in such amounts as will insure (without
investment of such cash or reinvestment of any interest
or proceeds from such U.S. Government Obligations) 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 the principal of and interest on all Securities
of such series and Coupons appertaining thereto on each
date that such principal and interest is due and
payable (whether at maturity or upon redemption
(through operation of a mandatory sinking fund or
otherwise) other than any redemption at the option of
the Holder);
(b) no Default or Event of Default or event,
which, with notice or the lapse of time or both, would
become an Event of Default with respect to the
Securities of such series shall have occurred and be
continuing on the date of such deposit or, insofar as
Sections 5.1(e) and (f) are concerned, at any time
during the period ending on and including the 91st day
after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until
the expiration of such period);
(c) such defeasance shall not cause the Trustee
to have a conflicting interest for purposes of the
Trust Indenture Act of 1939 with respect to any
securities of the Issuer;
(d) such defeasance shall not result in a breach
or violation of, or constitute a Default under, this
Indenture or any Securities of such series;
(e) the Issuer has delivered to the Trustee an
Opinion of Counsel to the effect (i) that the Holders
of the Securities of such series and the Coupons
appertaining thereto will not recognize income, gain or
loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the
same times as would have been the case if such deposit,
defeasance and discharge had not occurred; and (ii)
that the trust arising from such deposit shall not
constitute an "investment company" or an entity
"controlled" by an "investment company" as such terms
are defined in the Investment Company Act of 1940, as
amended;
(f) the Issuer has paid or caused to be paid all
other sums then payable hereunder by the Issuer and the
Issuer has delivered to the Trustee an Officers'
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;
(C) The Issuer and FCX shall each be released
from their obligations under Articles Nine, Fourteen and any
other covenants specified pursuant to Section 2.3 with
respect to the Securities of any series and any Coupons
appertaining thereto on and after the date the conditions
set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance
means that, with respect to the outstanding Securities of
the applicable series, the Issuer may omit to comply with
and shall have no liability in respect of any term,
condition or limitation set forth in such Section or any
such covenant, whether directly or indirectly by reason of
any reference elsewhere herein to such Section or any such
covenant or by reason of any reference in such Section to
any other provision herein or in any other document and such
omission to comply shall not constitute an Event of Default
under Section 5.1, but the remainder of this Indenture and
such Securities and Coupons shall be unaffected thereby.
The following shall be the conditions to application of this
subsection (C) of this Section 10.1:
(a) the Issuer has irrevocably deposited or
caused to be irrevocably deposited with the Trustee as
trust funds in trust for the purpose of making the
following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the
Holders of 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 payment 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 in an amount 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 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 (whether at
maturity or upon redemption (through operation of a
mandatory sinking fund or otherwise) other than any
redemption at the option of the Holder);
(b) no Default or Event of Default or event which
with notice or lapse of time or both would become an
Event of Default with respect to the Securities shall
have occurred and be continuing on the date of such
deposit or, insofar as subsections 5.1(d) and (e) are
concerned, at any time during the period ending on the
91st day after the date of such deposit (it being
understood that this condition shall not be deemed
satisfied until the expiration of such period);
(c) such covenant defeasance 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;
(d) such covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in
Section 310(b) of the Trust Indenture Act of 1939;
(e) such covenant defeasance shall not cause any
Securities then listed on any registered national
securities exchange to be delisted;
(f) the Issuer shall have delivered to the
Trustee an Opinion of Counsel to the effect (i) 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 covenant defeasance and will be subject
to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the
case if such covenant defeasance had not occurred; and
(ii) that the trust arising from such deposit shall not
constitute an "investment company" or an entity
"controlled" by an "investment company" as such terms
are defined in The Investment Company Act of 1940, as
amended; and
(g) the Issuer shall have delivered to the
Trustee an Officer's Certificate and an Opinion of
Counsel, each stating that all conditions precedent
relating to the covenant 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 monies and securities 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 monies or securities have been
deposited with the Trustee, of all sums due and to become
due thereon for principal and interest; but such monies or
securities need not be segregated from other funds except to
the extent required by law.
SECTION 10.3 Repayment of Monies Held by Paying
Agent. In connection with the satisfaction and discharge of
this Indenture with respect to the Securities of any series,
all monies then held by any paying agent under the
provisions of this Indenture with respect to such series
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
monies.
SECTION 10.4 Return of Monies Held by Trustee and
Paying Agent Unclaimed for Two Years. Any monies or U.S.
Government Obligations deposited with or paid to the Trustee
or any paying agent for the payment of the principal of and
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 and 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 monies shall thereupon cease;
provided, however, that the Trustee or such paying agent,
before being required to make any such repayment with
respect to monies 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 for such purpose
within two years preceding the giving of such notice, 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 City of New York and once in an Authorized
Newspaper in London (and, if required by Section 3.8, at
least once in an Authorized Newspaper in Luxembourg) notice,
that such monies 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 and FCX, jointly and severally,
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 Incorporators, Stockholders, Officers
and Directors of Issuer and FCX Exempt from Individual
Liability. No recourse shall be had for the payment of the
principal of, or interest on any Security, any Coupon
appertaining thereto or the FCX Guarantee, for any claim
based thereon, or otherwise in respect thereof, or based on
or in respect of this Indenture or any indenture supplement
thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Issuer,
FCX or any successor corporation, either directly or through
the Issuer, FCX or any successor corporation, whether by
virtue of constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance of such Security and
any Coupons appertaining thereto and as part of the
consideration for the issue thereof, expressly waived and
released; provided, that nothing in this paragraph shall
limit recourse against FCX in respect of the FCX Guarantee
or constitute a waiver of any rights which by law cannot be
waived.
SECTION 11.2 Provisions of Indenture for the Sole
Benefit of Parties and Securityholders. Nothing in this
Indenture or in the Securities or in Coupons appertaining
thereto, expressed or implied, shall give or be construed to
give to any Person, 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
the Holders of the Securities or Coupons, if any.
SECTION 11.3 Successors and Assigns of Issuer and FCX
Bound by Indenture. Except as provided in Section 9.3, all
covenants and agreements in this Indenture by the Issuer or
FCX shall bind their respective successors and assigns
(whether by merger, consolidation or otherwise), whether so
expressed or not.
SECTION 11.4 Notices and Demands on Issuer, FCX, the
Trustee and Securityholders. Any notice or demand which by
any provision of this Indenture is required or permitted to
be given or served by the Trustee or by the Holders of
Securities or Coupons to or on the Issuer or FCX 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 or
FCX is filed by the Issuer or FCX with the Trustee) to the
Issuer, c/o FCX, 1615 Poydras Street, New Orleans, Louisiana
70112, Attention: Corporate Secretary. Any notice,
direction, request or demand by the Issuer, FCX or any
Securityholder to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if
given or made at the Corporate Trust Office, 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, notice shall
be (i) mailed to those Holders of Unregistered Securities
who have filed their names and addresses for this purpose
with the Trustee within two preceding years of giving such
notice, with such notice being 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
and (ii) published at least once in an Authorized Newspaper
in the City of New York, and at least once in an Authorized
Newspaper in London (and, if required by Section 3.8, at
least once in an Authorized Newspaper in Luxembourg). 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 and
Securityholders 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 satisfactory to the
Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 11.5 Officers' Certificate and Opinions of
Counsel, Statements to Be Contained Therein. Upon any
application or demand by the Issuer or FCX, as applicable,
to the Trustee to take any action under any of the
provisions of this Indenture, the Issuer or FCX, as
applicable, shall furnish to the Trustee an Officers'
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.
Except as provided in Sections 3.5, 12.5 and 14.3, 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 providing such opinion has read such covenant
or condition, (b) a brief statement as to the nature and
scope of the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based, (c) a statement that, in the opinion of
such Person, he has made such examination or investigation
as is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in
the opinion of such Person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an officer of
the Issuer or FCX, as applicable, 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 Issuer or FCX, as applicable, upon the
certificate, statement or opinion of or representations by
an officer or officers of the Issuer or FCX, as applicable,
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 Issuer or FCX, as applicable, or of counsel may be
based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an
accountant or firm of accountants in the employ of the
Issuer or FCX, as applicable, 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 Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of
the Securities of such series) 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 hereof
limits, qualifies or conflicts with the duties imposed by
any of Sections 310 through 317, inclusive, of the Trust
Indenture Act of 1939 or with another provision hereof which
is required to be included by any of Section 310 through
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,
the FCX Guarantee and each Security shall each 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 said State, except that matters relating to the
authorization and execution by the Issuer of this Indenture
and the Securities shall be governed by the laws of The
Netherlands.
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 Officers' 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(g) or (h).
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 and FCX
agree, 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.
SECTION 11.13 Submission to Jurisdiction. The Issuer
agrees that any legal suit, action or proceeding arising out
of or relating to the Indenture, the Securities or the FCX
Guarantee may be instituted in any state or federal court in
the State and County of New York, United States of America
and to the extent it may lawfully do so, the Issuer hereby
waives, and agrees not to assert, by way of motion, as a
defense or otherwise, in any such suit, action or proceeding
any claim which it may now or hereafter have that it is not
personally subject to the jurisdiction of the above-named
courts, that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the suit, action or
proceeding is improper or that this Indenture or the subject
matter hereof may not be enforced by such court, and
irrevocably submits to the jurisdiction of any such court in
any such suit, action or proceeding. The Issuer hereby
designates FCX as the Issuer's authorized agent to accept
and acknowledge on its behalf service of any and all process
which may be served in any such suit, action or proceeding
in any such court and agrees that service of process upon
said agent at its office at 1615 Poydras Street, New
Orleans, Louisiana 70112, and written notice of said service
to the Issuer, mailed or delivered to it, at
, The Netherlands, shall be deemed in every
respect effective service of process upon the Issuer in any
such suit, action or proceeding and shall be taken and held
to be valid personal service upon the Issuer, whether or not
the Issuer shall then be doing, or at any time shall have
done, business within the State of New York, and that any
such service of process shall be of the same force and
validity as if service were made upon it according to the
laws governing the validity and requirements of such service
in such State, and waives all claim of error by reason of
any such service. Said designation and appointment shall be
irrevocable until the Indenture shall have been satisfied
and discharged in accordance with Article 10 and until all
amounts due under Section 6.6 shall have been paid.
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. Notice of
redemption to the Holders of Registered Securities to be
redeemed as a whole or in part at the option of the Issuer
shall be given in the manner provided in Section 11.4, at
least 30 days and not more than 60 days prior to the date
fixed for redemption to such Holders of Securities. Any
notice to be given by publication in an Authorized Newspaper
or Newspapers shall be published at least 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 Redemption Date, the
applicable Redemption Price, and, if the Redemption Price
was required to be calculated accordingly, or 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 a mandatory or optional sinking
fund, or both, if such be the case, that interest accrued to
the Redemption Date will be paid as specified in said notice
and that on and after said Redemption 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.
At least one Business Day prior to the Redemption Date
specified in the notice of redemption given as provided in
this Section, the Issuer will deposit with the Trustee or
with one or more paying agents (or, if the Issuer is acting
as its own paying agent, 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 to be redeemed at the appropriate
Redemption Price, together with accrued interest to and
including the Redemption Date. If less than all Securities
of any series are to be redeemed, the Issuer will deliver to
the Trustee at least 70 days prior to the date fixed for
redemption an Officers' 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 Officers'
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 provisions
relating to the redemption of Securities of any series shall
relate, in the case of any Security redeemed or to be
redeemed only in part, to the portion of the principal
amount of such Security which has been or is to be redeemed.
In case of a redemption at the election of the Issuer prior
to the expiration of any restriction on such redemption, the
Issuer shall deliver to the Trustee, prior to the giving of
any notice of redemption to Holders pursuant to this
Section, an Officers' Certificate stating that such
restriction has been complied with.
SECTION 12.3 Payment of Securities Called for
Redemption. If 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
Redemption Date and at the place stated in such notice at
the applicable Redemption Price, together with interest
accrued to and including the Redemption Date, and on and
after said Redemption Date (unless the Issuer shall default
in the payment of such Securities at the Redemption Price,
together with interest accrued to said Redemption 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 such Securities shall cease from and after the
Redemption Date to be entitled to any benefit or security
under this Indenture, and the Holders thereof shall have no
right in respect of such Securities to be redeemed except
the right to receive the applicable Redemption Price thereof
and unpaid interest to and including the Redemption Date.
On surrender of such Securities at a place of payment
specified in said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date,
such 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 and
including the Redemption Date; provided that any payment of
interest becoming due on or prior to the Redemption Date
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, registered as such on the relevant
Regular 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 Redemption Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities)
specified in 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, FCX 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 surrender 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 for such
series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so
prescribed.
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 Officers' Certificate of the Issuer or FCX 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 or FCX, 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 FCX
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 Officers' 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 Officers' Certificate (or reasonably
promptly thereafter if acceptable to the Trustee). Such
Officers' 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 or cause
to be delivered such Officers' 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 and subject to the
limitations in Section 12.4, 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 monies 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 monies, 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 monies 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 monies in the sinking fund for such series at
the time when any such default or Event of Default shall
occur, and any monies 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 monies shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this
Section to the redemption of such Securities.
ARTICLE THIRTEEN
FCX GUARANTEE OF SECURITIES
SECTION 13.1 Unconditional Guarantee. FCX hereby
unconditionally guarantees to each Holder of a Security of
any series authenticated and delivered by the Trustee, and
to the Trustee, the due and punctual payment of the
principal of and interest on such Security (together with
any additional amounts payable with respect to such
Security), when and as the same shall become due and
payable, whether at the Stated Maturity any Interest Payment
Date, by acceleration, call for redemption or otherwise, in
accordance with the terms of such Security and of this
Indenture. FCX hereby agrees that its obligations hereunder
shall be absolute and unconditional, irrespective of, and
shall be unaffected by, any invalidity, irregularity or
unenforceability of any such Security (other than as
provided in the last paragraph of this Section 13.1) or this
Indenture, any failure to enforce the provisions of any such
Security or this Indenture, or any waiver, modification or
indulgence granted to the Issuer with respect thereto, by
the Holder of such Security or the Trustee; provided, that,
notwithstanding the foregoing, no such waiver, modification
or indulgence shall, without the consent of FCX, increase
the aggregate principal amount of such Securities or the
interest rate or Yield to Maturity (in the case of Original
Issue Discount Securities) thereon except as provided in
such Security. FCX hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the
event of merger or bankruptcy of the Issuer, any right to
require a proceeding first against the Issuer, protest or
notice with respect to any such Security or the indebtedness
evidenced thereby and all demands whatsoever, and covenants
that this FCX Guarantee will not be discharged as to any
such Security except by payment in full of the principal of
and interest thereon. The FCX Guarantee constitutes a
guarantee of payment and not of collection.
FCX further agrees that, if at any time all or any part
of any payment theretofore made by the Issuer to the Holder
of said Security is or must be rescinded or returned by such
Holder for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of
the Issuer), the Issuer's obligations under said Security
shall, for the purposes of the FCX Guarantee, to the extent
that such payment is or must be rescinded or returned, be
deemed to have continued in existence, notwithstanding such
payment to the Holder, and the FCX Guarantee shall continue
to be effective or be reinstated, as the case may be, as to
such obligations, all as though such payment to the Holder
had not been made.
FCX shall be subrogated to all rights of the Holder of
any Securities against the Issuer in respect of any amounts
paid to the Holder by FCX pursuant to the provisions of the
FCX Guarantee; provided, however, that, as long as an Event
of Default has occurred and is continuing, FCX shall not be
entitled to enforce, or to receive any payments arising out
of or based upon, such right of subrogation until the
principal of, and interest on all Securities shall have been
paid in full in accordance with the terms hereof and of the
Securities.
No set-off, counterclaim, reduction, or diminution of
an obligation, or any defense of any kind or nature which
FCX has or may have against the Issuer or the Trustee or any
Holder of a Security shall be available hereunder to FCX or
any assignee or successor of FCX against the Trustee or any
Holder of a Security; provided, that FCX shall not be
prevented from asserting against the Issuer or the Trustee
or any Holder of a Security in a separate action any claim,
action, cause of action or demand that FCX shall have,
whether or not arising out of the FCX Guarantee.
Notwithstanding the foregoing, FCX shall have the right to
assert any compulsory counterclaim against any Holder of a
Security or the Trustee in any proceeding whether or not
arising out of the FCX Guarantee.
The FCX Guarantee set forth in this Section shall not
be valid or become obligatory for any purpose with respect
to a Security of any series until the certificate of
authentication on such Security shall have been signed by
the Trustee.
SECTION 13.2 Execution of the FCX Guarantee. FCX
hereby agrees to execute the FCX Guarantee in substantially
the form set forth in this Indenture to be endorsed on each
Security authenticated and delivered by the Trustee pursuant
to the Indenture. Such FCX Guarantee shall be signed on
behalf of FCX by an Authorized Signatory of FCX or such
Authorized Signatory's duly authorized attorney, prior to
the authentication of the Security on which it is endorsed,
and the delivery of such Security by the Trustee, after the
authentication thereof hereunder, shall constitute due
delivery of such FCX Guarantee on behalf of FCX. Such
signature may be a manual or facsimile signature and may be
imprinted or otherwise reproduced on the FCX Guarantee, and
for that purpose FCX may adopt and use the facsimile
signature of any such duly Authorized Signatory or attorney,
and if any such duly Authorized Signatory or attorney who
shall have signed the FCX Guarantee shall cease to be a duly
Authorized Signatory or attorney of FCX before the Security
on which such FCX Guarantee is endorsed shall have been
authenticated and delivered by the Trustee or disposed of by
the Issuer, such Security nevertheless may be authenticated
and delivered or disposed of as though the duly Authorized
Signatory or attorney who signed such FCX Guarantee had not
ceased to be a duly Authorized Signatory or attorney of FCX.
Typographical and other minor errors or defects in any such
reproduction of any such signature shall not affect the
validity or enforceability of any FCX Guarantee endorsed on
a Security which has been duly authenticated and delivered
by the Trustee.
ARTICLE FOURTEEN
COVENANTS OF FCX
SECTION 14.1 Covenant Not to Merge, Consolidate, Sell
or Convey Property Except Under Certain Conditions. FCX
covenants that it will not merge with or into or consolidate
with any Person or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its assets
to any Person and FCX shall not permit any Person to
consolidate with or merge into FCX or sell, convey,
transfer, lease or otherwise dispose of all or substantially
all of its assets to FCX, unless (i) either FCX (in the case
of a merger) shall be the continuing corporation, or the
successor corporation or the Person which acquires by sale,
conveyance, transfer, lease or disposition all or
substantially all of the assets of FCX (if other than FCX)
shall be a corporation organized under the laws of the
United States of America or any State thereof or the
District of Columbia and shall expressly assume, by
supplemental indenture, in form satisfactory to the Trustee,
executed and delivered to the Trustee by such corporation
pursuant to Article Eight hereof, all of the payment
obligations of FCX pursuant to this Indenture and the FCX
Guarantee; (ii) immediately after giving effect to such
merger, consolidation, sale, transfer, conveyance, lease or
disposition and treating any Debt which becomes an
obligation of FCX as a result of such transaction as having
been incurred by FCX at the time of such transaction, no
Default or Event of Default shall have occurred and be
continuing; and (iii) FCX has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, sale, transfer,
conveyance, lease or disposition and, if a supplemental
indenture is required in connection with such transaction,
such supplemental indenture, complies with this Indenture
and that all conditions precedent herein provided for or
relating to such transaction have been complied with.
SECTION 14.2 Successor Corporation Substituted. In
case of any such consolidation, merger, sale, conveyance,
transfer, lease or disposition, and following such an
assumption by the successor entity, such successor
corporation shall succeed to and be substituted for FCX,
with the same effect as if it had been named herein.
Such successor corporation may cause the FCX Guarantee
to be endorsed either in its own name or in the name of FCX
prior to such succession on any or all of the Securities
issuable hereunder, which theretofore shall not have the FCX
Guarantee endorsed thereon, and delivered to the Trustee;
and, upon the order of such successor corporation, instead
of FCX, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities and Coupons
appertaining thereto, if any, bearing the FCX Guarantee
which FCX previously endorsed thereon to the Trustee for
authentication, and any FCX Guarantee which such successor
corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All of the FCX
Guarantees so issued shall in all respects have the same
legal rank and benefit under this Indenture as the FCX
Guarantee theretofore or thereafter issued in accordance
with the terms of this Indenture, as though all of such FCX
Guarantees had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale,
conveyance, transfer, lease or disposition such changes in
phraseology and form (but not in substance) may be made in
the Securities and the FCX Guarantee thereafter to be issued
as may be appropriate.
In the event of any sale, conveyance, transfer or
disposition (other than a conveyance by way of lease)
covered by this Section 14.2, FCX (or any successor
corporation 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
FCX Guarantee, and may be liquidated and dissolved.
SECTION 14.3 Written Statement to Trustee. FCX will
deliver to the Trustee on or before March 31 in each year
(beginning with March 31, 1997) a brief certificate (which
need not comply with Section 11.5) from FCX signed by its
principal executive officer, principal financial officer or
principal accounting officer stating that in the course of
the performance by the signer of his duties as an officer of
FCX, he would normally have knowledge of any Default or non-
compliance by FCX in the performance or fulfillment of any
covenant, agreement or condition of FCX, contained in this
Indenture, stating whether or not he has knowledge of any
such Default or non-compliance and, if so, specifying each
such Default or non-compliance of which the signer has
knowledge and the nature thereof.
SECTION 14.4 Reports by FCX. FCX will file with the
Trustee, within 15 days after FCX is required to file the
same with the Commission, copies of the annual reports and
of the information, documents, and other reports which FCX
may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act and, if FCX
is not obligated to file financial reports, documents or
other reports with the Commission pursuant to Section 13 or
15(d) of the Exchange Act, FCX will file with the Commission
and furnish to the Trustee and the Holders of the Securities
the same financial reports, documents or other reports as if
FCX were so obligated.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as
of ______________ _____, 1996.
FCX FINANCE COMPANY B.V.
By: _______________________________
Name:
Title:
FREEPORT-McMoRan Copper & Gold Inc.
By: _______________________________
Name:
Title:
[CORPORATE SEAL OF FCX]
Attest:
By: ______________________________
Name:
Title:
____________________________, as Trustee
By:____________________________
Name:
Title:
[CORPORATE SEAL OF TRUSTEE]
Attest:
By: ______________________________
Name:
Title:
STATE OF LOUISIANA
PARISH OF ORLEANS
On this the ____ day of _____________ 1996, personally
came ___________________ to me personally known, who, being
by me duly sworn, did depose and say that he resides at
___________________; that he is a __________________ of FCX
Finance Company B.V., one of the corporations described in
and which executed the above instrument; and that he signed
his name thereto by like authority.
[NOTARIAL SEAL]
___________________________
Notary Public
STATE OF LOUISIANA
PARISH OF ORLEANS
On this ____ day of ______________ 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 a
______________________ of Freeport-McMoRan Copper & Gold
Inc., one of the corporations described in and which
executed the above instrument; that he knows the corporate
seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by
authority of the board of Directors of said corporation, and
that he signed his name thereto by like authority.
[NOTARIAL SEAL]
______________________________
Notary Public
STATE OF NEW YORK
COUNTY OF NEW YORK
On this ____ day of _______________ 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 a _____________ of
________________, one of the corporations described in and
which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
___________________________
Notary Public
FCX FINANCE COMPANY B.V., Issuer,
FREEPORT-McMoRAN COPPER & GOLD INC., Guarantor
and
_______________________, Trustee
SUBORDINATED
INDENTURE
Dated as of _____________________, 1996
TABLE OF CONTENTS
Page
PARTIES........................................................1
RECITALS.......................................................1
ARTICLE ONE - DEFINITIONS
SECTION 1.1 Certain Terms Defined.......................... 1
Authenticating Agent..................................... 2
Authorized Newspaper..................................... 2
Authorized Signatory..................................... 2
Board of Directors....................................... 2
Board Resolution......................................... 2
Business Day............................................. 2
Commission............................................... 2
Company Order............................................ 2
Corporate Trust Office................................... 3
Coupon................................................... 3
Debt..................................................... 3
Default.................................................. 3
Defeasance............................................... 3
Depositary............................................... 3
Dollar................................................... 3
ECU...................................................... 3
Event of Default......................................... 3
Exchange Act............................................. 3
FCX...................................................... 3
FCX Guarantee or FCX Guarantees.......................... 3
Foreign Currency......................................... 3
Guarantee................................................ 3
Guarantor................................................ 4
Holder, Holder of Securities, Securityholder............. 4
Indebtedness............................................. 4
Indenture................................................ 4
Insolvency Law........................................... 4
Interest................................................. 4
Interest Payment Date.................................... 4
Issuer................................................... 4
Judgment Currency........................................ 4
Officers' Certificate.................................... 4
Opinion of Counsel....................................... 4
original issue date...................................... 5
Original Issue Discount Security......................... 5
Outstanding.............................................. 5
Periodic Offering........................................ 5
Person................................................... 6
principal................................................ 6
Redemption Date.......................................... 6
Redemption Price......................................... 6
Registered Global Security............................... 6
Registered Security...................................... 6
Required Currency........................................ 6
Responsible Officer...................................... 6
SEC Reports ............................................. 6
Securities Act........................................... 6
Security or Securities................................... 6
Security Registrar....................................... 6
Senior Indebtedness...................................... 6
Stated Maturity.......................................... 6
Trade Payables........................................... 7
Trust Indenture Act of 1939.............................. 7
Trustee.................................................. 7
Unregistered Security.................................... 7
U.S. Government Obligations.............................. 7
Yield to Maturity........................................ 7
ARTICLE TWO - ISSUE, EXECUTION, FORM AND REGISTRATION OF
SECURITIES
SECTION 2.1 Forms Generally................................ 7
SECTION 2.2 Form of Trustee's Certificate of
Authentication................................. 7
SECTION 2.3 Amount Unlimited; Issuable in Series........... 8
SECTION 2.4 Authentication and Delivery of
Securities..................................... 11
SECTION 2.5 Execution of Securities........................ 14
SECTION 2.6 Certificate of Authentication.................. 14
SECTION 2.7 Denomination and Date of Securities;
Payments of Interest........................... 14
SECTION 2.8 Registration, Transfer and Exchange............ 15
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost
and Stolen Securities.......................... 18
SECTION 2.10 Cancellation of Securities;
Disposition Thereof............................ 19
SECTION 2.11 Temporary Securities........................... 20
ARTICLE THREE - COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest.............. 20
SECTION 3.2 Offices for Payments, etc...................... 21
SECTION 3.3 Appointment to Fill a Vacancy in
Office of Trustee.............................. 22
SECTION 3.4 Paying Agents.................................. 22
SECTION 3.5 Written Statement to Trustee................... 23
SECTION 3.6 Corporate Existence............................ 23
SECTION 3.7 Limitation on Other Business
Activities..................................... 23
SECTION 3.8 Luxembourg Publications........................ 24
ARTICLE FOUR - SECURITYHOLDERS' LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer and FCX to Furnish Trustee
Information as to Names and
Addresses of Securityholders................... 24
SECTION 4.2 Preservation and Disclosure of
Securityholders' Lists......................... 24
SECTION 4.3 Reports by the Issuer.......................... 25
SECTION 4.4 Reports by the Trustee......................... 25
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 ....................................... 25
SECTION 5.2 Collection of Debt by Trustee;
Trustee May Prove Debt......................... 29
SECTION 5.3 Application of Proceeds........................ 30
SECTION 5.4 Suits for Enforcement.......................... 31
SECTION 5.5 Restoration of Rights on Abandonment
of Proceedings................................. 31
SECTION 5.6 Limitations on Suits by
Securityholders................................ 32
SECTION 5.7 Unconditional Right of
Securityholders to Institute Certain
Suits.......................................... 32
SECTION 5.8 Powers and Remedies Cumulative; Delay
or Omission Not Waiver of Default.............. 32
SECTION 5.9 Control by Securityholders..................... 33
SECTION 5.10 Waiver of Past Defaults........................ 33
SECTION 5.11 Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances.................................. 34
SECTION 5.12 Right of Court to Require Filing of
Undertaking to Pay Costs....................... 34
ARTICLE SIX - CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the
Trustee; During Default; Prior to
Default........................................ 34
SECTION 6.2 Certain Rights of the Trustee.................. 35
SECTION 6.3 Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof................ 36
SECTION 6.4 Trustee and Agents May Hold
Securities or Coupons; Collections,
etc............................................ 37
SECTION 6.5 Monies Held by Trustee......................... 37
SECTION 6.6 Compensation and Indemnification of
Trustee and Its Prior Claim.................... 37
SECTION 6.7 Right of Trustee to Rely on Officers'
Certificate, etc............................... 37
SECTION 6.8 Persons Eligible for Appointment as
Trustee........................................ 38
SECTION 6.9 Resignation and Removal; Appointment
of Successor Trustee........................... 38
SECTION 6.10 Acceptance of Appointment by
Successor Trustee.............................. 40
SECTION 6.11 Merger, Conversion, Consolidation or
Succession to Business of Trustee.............. 41
SECTION 6.12 Preferential Collection of Claims
Against the Issuer............................. 41
SECTION 6.13 Appointment of Authenticating Agent........... 41
ARTICLE SEVEN - CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by
Securityholders................................ 42
SECTION 7.2 Proof of Execution of Instruments and
of Holding of Securities....................... 42
SECTION 7.3 Holders to be Treated as Owners................ 43
SECTION 7.4 Securities Owned by Issuer and FCX
Deemed Not Outstanding......................... 44
SECTION 7.5 Right of Revocation of Action Taken............ 44
SECTION 7.6 Record Date for Consents and Waivers........... 44
ARTICLE EIGHT - SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without
Consent of Securityholders..................... 45
SECTION 8.2 Supplemental Indentures With Consent
of Securityholders............................. 47
SECTION 8.3 Effect of Supplemental Indenture............... 48
SECTION 8.4 Documents to Be Given to Trustee............... 49
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures....................... 49
ARTICLE NINE - CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant of the Issuer Not to Merge,
Consolidate, Sell or Convey Property
Except Under Certain Conditions................ 49
SECTION 9.2 Successor Entity Substituted................... 49
SECTION 9.3 Assumption by FCX.............................. 50
SECTION 9.4 Opinion of Counsel to Trustee.................. 50
ARTICLE TEN - SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONIES
SECTION 10.1 Satisfaction and Discharge of
Indenture...................................... 51
SECTION 10.2 Application by Trustee of Funds
Deposited for Payment of Securities............ 55
SECTION 10.3 Repayment of Monies Held by Paying
Agent.......................................... 55
SECTION 10.4 Return of Monies Held by Trustee and
Paying Agent Unclaimed for Two Years........... 55
SECTION 10.5 Indemnity for U.S. Government
Obligations.................................... 56
ARTICLE ELEVEN - MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers
and Directors of Issuer and FCX
Exempt from Individual Liability............... 56
SECTION 11.2 Provisions of Indenture for the Sole
Benefit of Parties and
Securityholders................................ 56
SECTION 11.3 Successors and Assigns of Issuer and
FCX Bound by Indenture......................... 56
SECTION 11.4 Notices and Demands on Issuer, FCX,
Trustee and Securityholders.................... 56
SECTION 11.5 Officers' Certificates and Opinions
of Counsel, Statements to Be
Contained Therein.............................. 57
SECTION 11.6 Payments Due on Saturdays, Sundays
and Legal Holidays............................. 58
SECTION 11.7 Conflict of Any Provision of
Indenture with Trust Indenture Act of
1939........................................... 58
SECTION 11.8 New York Law to Govern......................... 58
SECTION 11.9 Counterparts................................... 59
SECTION 11.10 Effect of Headings............................ 59
SECTION 11.11 Securities in a Foreign Currency or in ECU.... 59
SECTION 11.12 Judgment Currency............................. 59
SECTION 11.13 Submission to Jurisdiction.................... 60
ARTICLE TWELVE - REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Application of Article......................... 61
SECTION 12.2 Notice of Redemption........................... 61
SECTION 12.3 Payment of Securities Called for
Redemption..................................... 62
SECTION 12.4 Exclusion of Certain of Securities
from Eligibility for Selection for
Redemption..................................... 63
SECTION 12.5 Mandatory and Optional Sinking Funds........... 63
ARTICLE THIRTEEN - FCX GUARANTEE OF SECURITIES
SECTION 13.1 Unconditional Guarantee........................ 65
SECTION 13.2 Execution of the FCX Guarantee................. 66
ARTICLE FOURTEEN - COVENANTS OF FCX
SECTION 14.1 Covenant Not to Merge, Consolidate,
Sell or Convey Property Except Under Certain
Conditions..................................... 67
SECTION 14.2 Successor Corporation Substituted ............. 67
SECTION 14.3 Written Statement to Trustee .................. 68
SECTION 14.4 Reports by FCX ................................ 68
ARTICLE FIFTEEN - SUBORDINATION - THE ISSUER
SECTION 15.1 Agreement to Subordinate....................... 69
SECTION 15.2 Payments to Securityholders.................... 69
SECTION 15.3 Subrogation.................................... 71
SECTION 15.4 Authorization by Securityholders............... 72
SECTION 15.5 Notice to Trustee.............................. 72
SECTION 15.6 Trustee's Relation to Senior
Indebtedness................................... 73
SECTION 15.7 No Impairment of Subordination................. 73
ARTICLE SIXTEEN - SUBORDINATION - FCX
SECTION 16.1 Agreement to Subordinate....................... 74
SECTION 16.2 Payments to Securityholders.................... 74
SECTION 16.3 Subrogation.................................... 75
SECTION 16.4 Authorization by Securityholders............... 76
SECTION 16.5 Notice to Trustee.............................. 77
SECTION 16.6 Trustee's Relation to Senior
Indebtedness................................... 78
SECTION 16.7 No Impairment of Subordination................. 78
TESTIMONIUM................................................... 79
SIGNATURES AND SEALS.......................................... 79
ACKNOWLEDGEMENTS.............................................. 80
CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture Act of 1939, as amended, and the
Indenture to be dated as of April _____, 1996 among FCX Finance
Company B.V., Freeport-McMoRan Copper & Gold Inc., and
____________________, as Trustee:
Section of the Act Section of Indenture
310(a)(1), (2) and (5)........................................6.8
310(a)(3) and (4)....................................Inapplicable
310(b)........................................6.9(a), (b) and (d)
310(c)...............................................Inapplicable
311(a) and (b)...............................................6.12
311(c)...............................................Inapplicable
312(a).............................................4.1 and 4.2(a)
312(b).....................................................4.2(b)
312(c).....................................................4.2(c)
313(a).....................................................4.4(a)
313(a)(5)..................................................4.4(b)
313(b).....................................................4.4(b)
313(c) ....................................................4.4(c)
313(d).....................................................4.4(d)
314(a).......................................3.5, 4.3, 14.3, 14.4
314(b)...............................................Inapplicable
314(c).......................................................11.5
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
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
318(a).......................................................11.7
*This Cross Reference Sheet is not part of the Indenture.
THIS INDENTURE, dated as of __________________________,
1996, among FCX Finance Company B.V., a Netherlands corporation
having its legal seat at Rotterdam, The Netherlands (the
"Issuer"), Freeport-McMoRan Copper & Gold Inc. ("FCX"), a
Delaware corporation, as Guarantor, and ____________________, a
_________________ corporation, as trustee (the "Trustee"),
WITNESSETH:
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 by 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;
WHEREAS, FCX has duly authorized the execution and delivery
from time to time of the FCX Guarantees and this Indenture (the
term "Securities" shall include the FCX Guarantees, as the
context requires); and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement of the Issuer, FCX and the Trustee
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, FCX 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 are defined in the Securities Act and referred to
in the Trust Indenture Act of 1939 (except as herein otherwise
expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in the Trust
Indenture Act of 1939 and in the Securities Act as in force at
the date of this Indenture. All accounting terms used herein and
not expressly defined shall have the meanings given to them in
accordance with generally accepted accounting principles, and the
term "generally accepted accounting principles" shall mean
generally accepted accounting principles in the United States
which are in effect on the date or time of any determination.
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 include the plural as well as the
singular.
"Authenticating Agent" shall have the meaning set forth
in Section 6.13.
"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 London, 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, London or 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.
"Authorized Signatory" means any of the chairman of the
Board of Directors, managing director, the president, any vice
president (whether or not designated by a number or numbers or a
word or words added before or after the title "Vice President"),
the treasurer or any assistant treasurer or the secretary or any
assistant secretary of any Person.
"Board of Directors" of any Person means the Board of
Directors (or other similar governing body) of such Person, or
any committee of such Board duly formed and authorized to act on
its behalf.
"Board Resolution" of any Person means a copy of one or
more resolutions, certified by the secretary or an assistant
secretary of such Person (or in the case of the Issuer, a
managing director) to have been duly adopted or consented to by
the Board of Directors of such Person and to be in full force and
effect, and delivered to the Trustee.
"Business Day" means, with respect to a Security, a day
that in the city (or in any cities, if more than one) in which
amounts are payable, as specified in the form of such Security,
which is not a day on which banking institutions and trust
companies are authorized by law or regulation or executive order
to close.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, 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, the
body performing such duties on such date.
"Company Order" means a written statement, request or
order of the Issuer or FCX which is signed in such company's name
by the chairman of the Board of Directors, the president, any
executive vice president, any senior vice president or any vice
president of FCX or any managing director of the Issuer.
"Corporate Trust Office" means the office of the
Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered, which
office is, at the date as of which this Indenture is dated,
located at ____________________________________________________.
"Coupon" means any interest coupon appertaining to a
Security.
"Debt" shall have the meaning set forth in Section 5.1.
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"Defeasance" shall have the meaning set forth in
Section 10.1.
"Depositary" means, with respect to the Securities of
any series issuable or issued in whole or in part in the form of
one or more Registered Global Securities, the Person designated
as the Depositary by the Issuer and FCX 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; provided that any
Person that is a Depositary hereunder must be a clearing agency
registered under the Exchange Act.
"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.
"Exchange Act" means the Securities and Exchange Act of
1934, as amended.
"FCX" means Freeport-McMoRan Copper & Gold Inc., a
Delaware corporation, and, subject to Sections 14.1 and 14.2, its
successors and assigns.
"FCX Guarantee" or "FCX Guarantees" means the guarantee
of FCX endorsed on the Securities of any series authenticated and
delivered pursuant to this Indenture.
"Foreign Currency" means a currency issued by the
government of a country other than the United States.
"Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person directly or indirectly
guaranteeing any Indebtedness or other obligation of any other
Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation
(whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement
conditions or otherwise), or (ii) entered into for the purpose of
assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part),
provided that the term Guarantee shall not include endorsements
for collection or deposit in the ordinary course of business.
The term "Guarantee" as used as a verb has a corresponding
meaning.
"Guarantor" means FCX as guarantor under the FCX
Guarantee.
"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" of any Person means at any date, without
duplication (i) all obligations of such Person for borrowed
money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all
obligations of such Person in respect of letters of credit or
other similar instruments (or reimbursement obligations with
respect thereto), (iv) all obligations of such Person to pay the
deferred purchase price of property or services, except Trade
Payables, (v) all obligations of such Person as a lessee under
capital leases, (vi) all Indebtedness of others secured by a lien
on any asset of such Person, whether or not such Indebtedness is
assumed by such Person, (vii) all Indebtedness of others
Guaranteed by such Person.
"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.
"Insolvency Law" means any Netherlands, Indonesian,
United States (Federal or State), or other applicable bankruptcy,
insolvency, reorganization or similar law in any applicable
jurisdiction.
"Interest" means, when used with respect to non-
interest bearing Securities, interest payable after maturity.
"Interest Payment Date" when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"Issuer" means FCX Finance Company B.V., a Netherlands
corporation having its legal seat at Rotterdam, and, subject to
Article Nine, its successors and assigns.
"Judgment Currency" shall have the meaning set forth in
Section 11.12.
"Officers' Certificate" means, in the case of FCX, a
certificate signed by the chairman of the board or the president
or any vice president (whether or not designated by a number or
numbers or a word or words added before or after the title "Vice
President") and by the treasurer or any assistant treasurer or
the secretary or any assistant secretary of FCX, and, in the case
of the Issuer, a certificate signed by a managing director, and
in each case delivered to the Trustee. Each such certificate
shall include the statements provided for in Section 11.5, if and
to the extent required hereby.
"Opinion of Counsel" means an opinion in writing signed
by legal counsel, who may be an employee of or counsel to the
Issuer or FCX, as applicable, or who may be other counsel
satisfactory to the Trustee. Each such opinion shall include the
statements provided for in Section 11.5, if and to the extent
required hereby.
"Original issue date" of any Security (or portion
thereof) means the earlier of (a) the Issue Date of such Security
or (b) the Issue Date of any Security (or portion thereof) for
which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution. For purposes
of this definition, "Issue Date" means the date of issue of any
series of Securities under this Indenture as more specifically
stated on the reverse of such Securities.
"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", when used with reference to Securities
of any series issued hereunder, shall, subject to the provisions
of Section 7.4, mean, as of any particular time, all Securities
of such series 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 monies 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 (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 Stated 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 (unless proof satisfactory to the Trustee is
presented that any of such Securities 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, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"principal" whenever used with reference to the
Securities of any series or any portion thereof, shall be deemed
to include "and premium, if any".
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
"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, which Security shall be
without Coupons.
"Required Currency" shall have the meaning set forth in
Section 11.12.
"Responsible Officer", when used with respect to the
Trustee means the Chairman of the Board of Directors, the
President, the Secretary, the Treasurer or any other officer of
the Trustee customarily performing corporate trust functions.
"SEC Reports" shall have the meaning set forth in
Section 4.3.
"Securities Act" means the Securities Act of 1933, as
amended.
"Security" or "Securities" has the meaning stated in
the first recital of this Indenture and more particularly means
any Securities of any series, authenticated and delivered under
this Indenture.
"Security Registrar" means the Trustee or any successor
Security Registrar appointed by the Issuer.
"Senior Indebtedness" means all Indebtedness of any
Person (other than the Securities, in the case of the Issuer, or
the FCX Guarantees, in the case of FCX) including principal and
interest (including, without limitation, any interest that would
accrue but for the filing of a petition initiating any proceeding
referred to in Section 15.2 or 16.2 hereof) on such Indebtedness,
created, incurred or assumed on or after the date of the first
issuance of any Securities, unless such Indebtedness, by its
terms or the terms of the instrument creating or evidencing it,
is subordinate in right of payment to, or pari passu with, the
Securities and the FCX Guarantees; provided, that the term Senior
Indebtedness shall not include (a) any Indebtedness of a Person
which, when incurred and without respect to any election under
Section 1111(b) of Title 11, United States Code, with or without
recourse to the Issuer, (b) any Indebtedness of a Person to an
affiliate of such Person and any refinancing thereof, (c)
Indebtedness to any employee of the Issuer and (d) Trade
Payables.
"Stated Maturity" means, with respect to any Security,
the date specified in such Security as the fixed date on which
the principal of such security is due and payable, including
pursuant to any mandatory redemption provision (but excluding any
provision providing for the repurchase of such security at the
option of the Holder thereof upon the happening of any
contingency unless such contingency has occurred) and with
respect to any installment of interest upon such Security, the
date specified in such Security, or Coupon appertaining thereto,
if applicable as the fixed date on which such installment of
interest is due and payable.
"Trade Payables" means accounts payable for any other
indebtedness or monetary obligations to trade creditors created
or assumed by a Person or any subsidiary of such Person in the
ordinary course of business in connection with the obtaining of
materials or services.
"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 the issuance of
such series, or, if applicable, at the most recent
redetermination of interest on such series, and calculated in
accordance with generally accepted financial practice.
ARTICLE TWO
ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series
and the Coupons, if any, issued hereunder shall be substantially
in such form and bear such legends (not inconsistent with this
Indenture) as shall be established by or pursuant to one or more
Board Resolutions of the Issuer (as set forth in a Board
Resolution of the Issuer or FCX, as the case may be, or, to the
extent established pursuant to rather than set forth in a Board
Resolution of the Issuer or FCX, as the case may be, an Officers'
Certificate of the Issuer or FCX, as the case may be, 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 of the Issuer and FCX such Securities and
Coupons, if any, as evidenced by their execution of such
Securities and Coupons, if any. If temporary Securities are
issued as permitted by Section 2.11, the form thereof also shall
be established as provided in the preceding sentence.
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 Subordinated
Indenture.
_______________________________,
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 Subordinated
Indenture.
____________________, N.A., Trustee
By:_______________________________
As Authenticating Agent
By:_______________________________
Authorized Officer
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 the Securities
of each other series, but all Securities hereunder shall be
subordinate and junior in right of payment, to the extent and
manner set forth in Article 15, to all Senior Indebtedness of the
Issuer, and the FCX Guarantees endorsed thereon any Securities
hereunder be subordinate and junior in right of payment, to the
extent and manner set forth in Article 16, to all Senior
Indebtedness of FCX. 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
Officers' Certificate detailing such establishment) or 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 12.2);
(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, the Interest Payment Date
on which any such interest shall be payable and (in the case
of Registered Securities) the Regular Record Date for any
interest payable on any Interest Payment Date and/or the
method by which such rate or rates or Regular Record Date or
Dates shall be computed or determined;
(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, FCX or any
Holder to redeem or cause to be redeemed Securities of the
series, 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 or FCX to
redeem, purchase or repay Securities of the series, in whole
or in part, 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 the manner in which (if
different from the provisions of Article 12 hereof)
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, FCX 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 and the manner in
which the exchange rate with respect to such payments shall
be determined;
(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 and the form of any
legend in addition or in lieu of that in Section 2.4 to be
borne by such Registered Global Security) or Unregistered
Securities (with or without Coupons), or any combination of
the foregoing, any restrictions and procedures applicable to
the offer, sale or delivery of Unregistered Securities or
the payment of interest thereon, if other than as provided
in Section 2.8, and the terms upon which Unregistered
Securities of any series may be exchanged for Registered
Securities of such series and vice versa if other than
provided in Section 2.8;
(15) whether and under what circumstances the Issuer or
FCX will pay additional amounts on the Securities of the
series to the Holders, or certain Holders, thereof in
respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Issuer or FCX
will have the option to redeem such Securities rather than
pay such additional amounts (and the terms of any such
option);
(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, depositaries, authenticating or
paying agents, transfer agents or registrars or any other
agents with respect to the Securities of such series;
(18) any deletions from, modifications of or additions
to the Events of Default or covenants of the Issuer or FCX
set forth herein (including any defined terms relating
thereto);
(19) the term and condition upon which and the manner
in which Securities of the series may be defeased or
defeasible if different from the provisions of Article 10;
(20) whether the Securities will be issued as global
Securities and, if other than as provided in Section 2.8,
the terms upon which such global Securities may be exchanged
for definitive Securities;
(21) offices at which presentation and demands may be
made and notices be served, if other than the Corporate
Trust Office; and
(22) 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 appertaining
thereto, if any, 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 Officers' 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 Officers'
Certificate or in any such indenture supplemental hereto.
SECTION 2.4 Authentication and Delivery of Securities.
Upon the execution and delivery of this Indenture, or from time
to time thereafter, Securities, including Coupons appertaining
thereto, if any, may be executed by the Issuer and, upon
endorsement thereon of the FCX Guarantees, delivered 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 and Coupons
appertaining thereto, if any, and the FCX Guarantees to or upon
the order of the Issuer (contained in the Company 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 a Company Order, without any
further action by the Issuer or FCX. 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 Company Order or procedures
authorized by such Company Order. If provided for in such
procedures, such Company Order may authorize authentication and
delivery of Securities 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) a Company 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 Company 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 a Company Order or
pursuant to procedures acceptable to the Trustee as may be
specified from time to time by a Company Order, (c) the
maturity date or dates, original issue date or dates or
interest rate or rates and any other terms of Securities of
such series shall be determined by a Company Order or
pursuant to such procedures and (d) if provided for in such
procedures, such Company Order may authorize authentication
and delivery of Securities pursuant to oral or electronic
instructions from the Issuer or its duly authorized agent or
agents, which oral or electronic 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, Officers' 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 Officers' Certificate setting forth the form or
forms and terms of the Securities 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, and FCX Guarantees 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 and, if other than set forth
herein, the terms of the FCX Guarantees 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 and,
if other than set forth herein, the terms of the FCX
Guarantees have been established pursuant to a Board
Resolution, an Officers' 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 a Company Order shall have been
established, all such terms will have been duly
authorized by the Issuer or FCX 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 the FCX Guarantees
thereon executed by FCX 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 and FCX,
respectively, 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 and
FCX of, and the performance by the Issuer and FCX of
their respective obligations under the Securities, the
Coupons, if any, and the FCX Guarantees, will not
contravene any provision of applicable law or the
Articles of Association of the Issuer or the
certificate of incorporation or by-laws of FCX or any
agreement or other instrument binding upon the Issuer,
FCX or any of the respective subsidiaries of the
foregoing that is material to the Issuer or FCX, each
considered as one enterprise with their respective
subsidiaries, or, to the best of such counsel's
knowledge but without independent investigation, any
judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Issuer,
FCX or any of their respective subsidiaries, and no
consent, approval or authorization of any governmental
body or agency is required for the performance by the
Issuer or FCX of their respective 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 upon opinions of other counsel
(copies of which shall be delivered to the Trustee), who shall be
counsel reasonably satisfactory 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, FCX or any of their respective 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 FCX 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 and FCX shall establish pursuant to Section
2.3 that all or a portion of 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, upon endorsement thereon of
the FCX Guarantee, the Trustee shall, in accordance with this
Section 2.4 and the Company 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 or a portion of
the Securities of such series issued and not yet cancelled or
exchanged 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 a nominee thereof or a custodian therefor or
pursuant to such Depositary's instructions and (iv) shall bear a
legend substantially to the following effect: "This Security is
a Registered Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a
Depositary or a nominee thereof. This Security may not be
exchanged in whole or in part for a Security registered, and no
transfer of this Security in whole or in part may be registered,
in the name of any Person other than such Depositary or a nominee
thereof, except in the limited circumstances described in the
Indenture."
SECTION 2.5 Execution of Securities. The Securities and,
if applicable, each Coupon appertaining thereto shall be signed
on behalf of the Issuer by any of its managing directors. Such
signature may be the manual or facsimile signature of the present
or any future such managing director. Typographical and other
minor errors or defects in any such reproduction of 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 managing director of the Issuer who shall have
signed any of the Securities or Coupons, if any, shall cease to
be such managing director before the Security or Coupon so signed
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
managing director of the Issuer; and any Security or Coupon may
be signed on behalf of the Issuer by such Person as, at the
actual date of the execution of such Security or Coupon, shall be
the proper officer of the Issuer, although at the date of the
execution and delivery of this Indenture any such Person was not
such officer.
The FCX Guarantee endorsed on each Security shall be
executed by an Authorized Signatory of FCX in the manner provided
in Section 13.2.
SECTION 2.6 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication
substantially in the form set forth in Section 2.2, 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. Such certificate by the
Trustee upon any Security executed by the Issuer on which the FCX
Guarantee executed by FCX is endorsed shall be conclusive
evidence that the Security and Coupons, if any, appertaining
thereto, so authenticated have 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 managing directors of the
Issuer 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 Board Resolution or Resolutions or
indenture supplemental hereto referred to in Section 2.3 or, if
not so specified, each such Unregistered Security shall be dated
as of the date of issuance of the first Unregistered Security of
such series to be issued. The Securities of each series shall
bear interest, if any, from the date, and such interest shall be
payable on the Interest Payment 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 Regular
Record Date applicable to such 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 such Regular Record Date and prior to such
Interest Payment Date, except in the case of any such transfer or
exchange if and to the extent the Issuer shall default in the
payment of the interest due on such Interest Payment Date for
such series (and FCX does not pay such installment on such
Interest Payment Date), in which case such defaulted interest
shall then cease to be payable to the Holder on such Regular
Record Date by virtue of having been such Holder and 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.
Interest on any Unregistered Securities which is payable, and
punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Holder of such Unregistered Security or
of the applicable Coupon appertaining to such Unregistered
Security.
SECTION 2.8 Registration, Transfer and Exchange. The
Issuer will cause to be kept at each 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 surrender for transfer of any Registered Security of
any series at any such office or agency to be maintained for the
purpose provided in Section 3.2, the Issuer and FCX 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 such series, Stated Maturity, interest rate and
original issue date in any authorized denominations and of a like
aggregate principal amount and tenor, with the FCX Guarantee
endorsed thereon.
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, any Security may be
exchanged for a Security of the same series, of like tenor, in
authorized denominations and in an equal aggregate principal
amount, with the FCX Guarantee endorsed thereon, upon surrender
of such Security at an office or agency to be maintained for such
purpose in accordance with Section 3.2 or as specified pursuant
to Section 2.3, and the Issuer shall execute, and the Trustee
shall authenticate and deliver in exchange therefor, the Security
or Securities, with the FCX Guarantee endorsed thereon, which the
Holder making the exchange shall be entitled to receive bearing a
number or other distinguishing symbol not contemporaneously
outstanding. Subject to the foregoing, (i) a Registered Security
of any series (other than a Registered Global Security, except as
set forth below) may be exchanged for a Registered Security or
Securities of the same series; (ii) if the Securities of any
series are issued in both registered and unregistered form,
except as otherwise specified pursuant to Section 2.3,
Unregistered Securities may be exchanged for a Registered
Security or Securities of the same series, but a Registered
Security may not be exchanged for an Unregistered Security or
Securities; and (iii) if Unregistered Securities of any series
are issued in more than one authorized denomination, except as
otherwise specified pursuant to Section 2.3, any such
Unregistered Security or Securities may be exchanged for an
Unregistered Security or Securities of the same series; provided
that in connection with the surrender of any Unregistered
Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default must be surrendered with the
Securities being exchanged. If the Holder of an Unregistered
Security is unable to produce any such unmatured Coupon or
Coupons or matured Coupon or Coupons in default, such exchange
may be effected if the Unregistered Securities are accompanied by
payment in funds acceptable to the Issuer in an amount equal to
the face amount of such missing Coupon or Coupons, or the
surrender of such missing Coupon or Coupons may be waived by the
Issuer, FCX and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them
and any paying agent harmless. If thereafter the Holder of such
Security shall surrender to any paying agent any such missing
Coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive from the Issuer the
amount of such payment; provided, however, that, except as
otherwise provided in Section 3.2, interest represented by
Coupons shall be payable only upon the presentation and surrender
of those Coupons and an office or agency located outside the
United States. Notwithstanding the foregoing, in case an
Unregistered Security of any series is surrendered at any such
office or agency in exchange for a Registered Security of the
same series in like tenor after the close of business at such
officer agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any subsequent record date and the
before the opening of business at such office or agency on such
subsequent date for the payment of interest in default, such
Unregistered Security shall be surrendered without the Coupon
relating to such Interest Payment Date or subsequent date for
payment, as the case may be, and interest or in interest in
default, as the case may be, will not be payable on such Interest
Payment Date or subsequent date for payment, as the case may be,
in respect of the Registered Security issued in exchange for such
Unregistered Security, but will be payable only to the Holder of
such Coupon when due in accordance with the provisions of this
Indenture. 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, repurchase 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.
Each Registered Global Security authenticated under this
Indenture shall be registered in the name of the Depository
designated for such Registered Global Security or a nominee
thereof, and each such Registered Global Security shall
constitute a single security for all purposes of this Indenture.
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 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, (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 or (d) to exchange any Unregistered Security so
selected for redemption, except that such Unregistered Security
may be exchanged for a Registered Security of that series and
like tenor, provided that such Registered Security shall be
simultaneously surrendered for redemption.
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 is no
longer eligible because it ceased to be a clearing agency
registered under the Exchange Act and the Issuer thereupon fails
to appoint a successor Depositary 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 Officers' 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, with the FCX
Guarantees endorsed thereon, of like tenor 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, with the FCX Guarantees
endorsed thereon, 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 Officers' 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, with the FCX
Guarantees endorsed thereon, 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, with the FCX Guarantee or Guarantees endorsed
thereon; 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, with the FCX Guarantee endorsed
thereon.
Upon the exchange of a Registered Global Security for
Securities in definitive registered form without Coupons, in
authorized denominations, with the FCX Guarantee endorsed
thereon, 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 and the FCX Guarantees endorsed thereon
issued upon any transfer or exchange of Securities and the
related FCX Guarantees shall be valid and legally binding
obligations of the Issuer and FCX, respectively, evidencing the
same debt, and entitled to the same benefits under this
Indenture, as the Securities and FCX Guarantees surrendered upon
such transfer or exchange.
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 apparently destroyed, lost or stolen, the Issuer in
its discretion may execute, and upon the written request of any
officer of the Issuer, the Trustee shall authenticate and deliver
a new Security of the same series, of like tenor and in equal
aggregate principal amount, with the FCX Guarantee endorsed
thereon, 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 apparently destroyed, lost or
stolen or in exchange for the Security to which a mutilated,
defaced, destroyed, lost or stolen with Coupons corresponding to
the Coupons appertaining to the Securities for which substitutes
are being issued. 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 and FCX harmless and, in every case of
apparent destruction, loss or theft, evidence to their
satisfaction of the apparent destruction, loss or theft of such
Security or Coupon and of the ownership thereof. In the case of
a mutilated or defaced Security or Coupon, the applicant for a
substitute Security or Coupon shall surrender such mutilated or
defaced Security or Coupon 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 apparently destroyed, lost or stolen, the Issuer
may, instead of issuing a substitute Security or Coupon, 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
or FCX may require to save each of them harmless from all risks,
however remote, arising as a result of such payment and, in every
case of apparent 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
apparent destruction, loss or theft of such Security 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 apparently destroyed, lost or
stolen shall constitute an additional contractual obligation of
the Issuer and FCX, whether or not the apparently 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 or 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 apparently
destroyed, lost or stolen Securities and Coupon 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,
repurchase, 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 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 unless the Issuer shall direct that cancelled
Securities be returned to it. If the Issuer or FCX 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 for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation
of definitive Securities for any series, the Issuer and FCX 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) with the FCX Guarantee endorsed thereon. 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, with the FCX Guarantee endorsed
thereon, 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, with the FCX Guarantee endorsed thereon, 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 3.2, 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, with the FCX Guarantee endorsed thereon, 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
issued hereunder 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 with respect
to such Securities) at the place or places, at the respective
times and in the manner provided in the Securities of such series
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 with respect to
such Securities) shall be payable only upon presentation and
surrender of the several Coupons for such interest installments
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 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 entitled thereto 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 remain Outstanding, the Issuer will maintain in
the Borough of Manhattan, The City of New York, an office or
agency where the Registered Securities of each series may be
surrendered for payment and, where the Registered Securities of
each series may be surrendered for registration of transfer or
exchange as is provided in this Indenture.
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 office or 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 surrendered for payment or exchange.
No payment on or exchange of any Unregistered Security or Coupon
will be made upon surrender of such Unregistered Security or
Coupon at an office or 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 Borough of Manhattan, 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 prompt written notice of
the location of any such office or agency and of any change of
location thereof. The Issuer hereby initially designates the
Corporate Trust Office of the Trustee maintained in the City of
New York as the office or agency for each such purpose to be
carried out in New York. In case the Issuer shall fail to
maintain any such office or agency or shall fail to provide such
notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served
at the Corporate Trust Office.
The Issuer will cause to be kept a register at the office of
the Security Registrar in which, subject to such reasonable
regulations as it may prescribe, the Issuer will provide for the
registration of Securities and of transfers of Securities. The
Trustee is hereby initially appointed Security Registrar for the
purpose of registering Securities and transferring Securities as
herein provided.
The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of any 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 3.2. 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 6.9, 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 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,
(c) that it will, at any time during the continuance
of any such failure, upon the written request of the
Trustee, forthwith pay to the Trustee all sums so held in
trust by such paying agent, and
(d) that it will in all respects comply with the
provisions of the Trust Indenture Act of 1939
applicable to 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, such sum to be held as
provided in the Trust Indenture Act of 1939, 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 until such sums shall be paid to such
Persons or otherwise disposed of as herein provided. 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 with respect
to this Indenture 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 the Trustee on or before March 31 in each year
(beginning with March 31, 1997) a brief certificate (which need
not comply with Section 11.5) from the Issuer, signed by its
principal executive officer, principal financial officer, or
principal accounting officer, stating that in the course of the
performance by the signer of his duties as an officer of the
Issuer, he would normally have knowledge of any Default or non-
compliance by the Issuer in the performance or fulfillment of any
covenant, agreement or condition of the Issuer, contained in this
Indenture, stating whether or not he has knowledge of any such
Default or non-compliance and, if so, specifying each such
Default or non-compliance of which the signer has knowledge and
the nature thereof.
SECTION 3.6 Corporate Existence. Subject to Article Nine,
the Issuer will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate
existence, rights and franchises; provided that the Issuer shall
not be required to preserve its corporate existence or any such
right or franchise if the Issuer shall determine that the
preservation thereof is no longer desirable in the conduct of its
business and that the loss thereof is not disadvantageous in any
material respect to the Holders of any series of Securities.
SECTION 3.7 Limitation on Other Business Activities. The
Issuer will not lease or own any material facilities or other
property or engage in any material operations other than the
issuance and sale of the Securities, the application of the
proceeds thereof and taking such other actions as are called for
by this Indenture. The Issuer will not issue its Capital Stock
to any Person other than FCX and the wholly-owned Subsidiaries of
FCX.
SECTION 3.8 Luxembourg Publications. In the event of the
publication of any notice pursuant to Section 5.11, 6.9, 6.10,
8.2, 10.4, 12.2 or 12.5, the party making such publication in 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 any Officers' 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 and FCX to Furnish Trustee Information
as to Names and Addresses of Securityholders. The Issuer, FCX
and any other obligor on the Securities each covenants and agrees
that it 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 Securities of each
series:
(a) semiannually and not more than 15 days after each
Regular Record Date, 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 for such series.
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 Securities (i)
contained in the most recent list furnished to the Trustee as
provided in Section 4.1, (ii) received by the Trustee in its
capacity as Security Registrar for such series, if so acting, and
(iii) filed with it within two preceding years pursuant to
Section 4.4(c). The Trustee may destroy any list furnished to it
as provided in Section 4.1 upon receipt of a new list so
furnished.
(b) The rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or
under any series of the Securities, and the corresponding rights
and duties of the Trustee, shall be as provided by the Trust
Indenture Act.
(c) Every Holder of Securities, by receiving and
holding the same, agrees with the Issuer, FCX and the Trustee
that none of the Issuer, FCX or the Trustee or any agent of any
of the foregoing shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders
made pursuant to the Trust Indenture Act.
SECTION 4.3 Reports by the Issuer. The Issuer shall file
with the Trustee and the Commission, and transmit to Holders,
such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act
at the times and in the manner provided pursuant to such Act,
provided that any such information, documents or reports required
to be filed with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act ("SEC Reports"), if any, shall be filed with
the Trustee within 15 days after the same is so required to be
filed with the Commission.
SECTION 4.4 Reports by the Trustee. (a) Within 60 days
after _________ of each year, commencing with the first _____
following the first issuance of Securities pursuant to Section
2.4, if required by Section 313(a) of the Trust Indenture Act,
the Trustee shall transmit, pursuant to Section 313(c) of the
Trust Indenture Act, a brief report dated as of such ______ with
respect to any of the events specified in said Section 313(a)
which may have occurred since the later of the immediately
preceding _____________________ and the date of this Indenture.
(b) The Trustee shall transmit the reports required by
Section 313(b) of the Trust Indenture Act and Section 5.11 hereof
at the times specified therein.
(c) Reports pursuant to this Section shall be
transmitted in the manner and to the Persons required by Section
313(c) and 313(d) of the Trust Indenture Act.
(d) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each
stock exchange upon which the Securities of any series are
listed, with the Commission and with the Issuer. The Issuer will
promptly notify the Trustee when the Securities of any series are
listed on any stock 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 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 or any
Coupon appertaining thereto (together with any additional
amounts payable with respect to such Securities) 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 their
Stated Maturity, upon any redemption by declaration or
otherwise; provided that, if such default is the result of
an optional redemption by the Holders of such Securities,
the amount thereof shall be in excess of $50,000,000 or the
equivalent thereof in any currency or composite currency; or
(c) failure on the part of the Issuer or FCX duly to
comply with, observe or perform any of the other covenants
or agreements on the part of the Issuer or FCX contained in,
or provisions of, the Securities of any series, the FCX
Guarantees or this Indenture (other than a covenant or
agreement which is not applicable to the Securities of such
series), but only if such default shall not have been
remedied 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 or FCX, as applicable, remedy the same, shall
have been given by registered or certified mail, return
receipt requested, to the Issuer and FCX by the Trustee, or
to the Issuer and FCX and the Trustee by the Holders of at
least 25% in aggregate principal amount of the Outstanding
Securities of either series of Securities; or
(d) The FCX Guarantee endorsed on the Securities of
any series shall cease for any reason to be in full force
and effect or FCX shall assert that the FCX Guarantee is not
in full force and effect; or
(e) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of
the Issuer or FCX in an involuntary case or proceeding under
any applicable Insolvency Law or (B) a decree or order
adjudging the Issuer or FCX a bankrupt or insolvent under an
applicable Insolvency Law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Issuer or FCX or of any
substantial part of the property of the Issuer or FCX or
ordering the winding up or liquidation of the affairs of the
Issuer or FCX and the continuance of any such decree or
order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(f) the commencement by the Issuer or FCX of a
voluntary case or proceeding under any applicable Insolvency
Law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by the Issuer or FCX
to the entry of a decree or order for relief in respect of
the Issuer or FCX in an involuntary case or proceeding under
any applicable Insolvency Law or to the commencement of any
bankruptcy or insolvency case or proceeding against the
Issuer or FCX or the filing by the Issuer or FCX of a
petition, answer or consent seeking reorganization or relief
under any applicable Insolvency Law, or the consent by the
Issuer or FCX to the filing of such petition or to the
appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Issuer or FCX or of any substantial
part of the property of the Issuer or FCX or the making by
the Issuer or FCX of an assignment for the benefit of
creditors, or the admission by the Issuer or FCX in writing
of its inability to pay its debts generally as they become
due, or the taking of corporate action (which shall involve
the passing of one or more Board Resolutions by the Issuer
or FCX) in furtherance of any such action,
(g) failure by the Issuer or FCX 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. the FCX Guarantees or nonrecourse
obligations) of, or guaranteed or assumed by, the Issuer or
FCX for borrowed money or evidenced by bonds, debentures,
notes or other similar instruments ("Debt") 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 and FCX by the
Trustee, or to the Issuer, FCX and the Trustee by the
holders of not less than 25% in aggregate principal amount
of the Outstanding Securities of such series affected
thereby; or
(h) 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 Debt
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 and FCX by the Trustee, or to the Issuer, FCX and
the Trustee by the holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of such
series affected thereby; or
(i) any other Event of Default provided for with
respect to Securities of that series in the supplemental
indenture under which such series is issued or in the terms
of Securities of 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, waived,
rescinded or annulled without further action on the part of
either the Trustee or any of the Securityholders.
If an Event of Default described in other than those
specified in Section 5.1(e) or (f) (if the Event of Default under
clause (c), (g) or (h), as the case may be, is with respect to
less than all series of Securities then Outstanding) occurs and
is continuing, 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 each such affected series then Outstanding
hereunder (voting as a single class) 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 any such
affected 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 all such affected series,
and the interest accrued thereon, if any, (together with any
additional amounts payable with respect to such Securities) to be
due and payable immediately, and upon any such declaration, the
same shall become immediately due and payable. If an Event of
Default other than those specified in Section 5.1(e) or (f) (if
the Event of Default under clause (c), (g) or (h), as the case
may be, is with respect to all series of Securities then
Outstanding), occurs and is continuing, then and in each and
every such case, unless the principal of all the Securities shall
have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of all
the Securities then Outstanding hereunder (treated as one class),
by notice in writing to the Issuer (and to the Trustee if given
by Securityholders), may declare the entire principal (or, if any
Securities are Original Issue Discount Securities, such portion
of the principal as may be specified in the terms thereof) of all
the Securities then Outstanding, and interest accrued thereon, if
any, (together with any additional amounts payable with respect
to such Securities) to be due and payable immediately, and upon
any such declaration the same shall become immediately due and
payable. If an Event of Default specified in Section 5.1(e) or
(f) occurs, the principal of and accrued interest on the
Securities shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee
or any Securityholder.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the
Securities of such series 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 monies due shall have been obtained or entered
as hereinafter provided, the Issuer or FCX shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured
installments of interest (together with any additional amounts
payable with respect to such Securities) upon all the Securities
of such series and the principal of any and all Securities of
each 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, (together
with any additional amounts payable with respect to such
Securities) 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 each such series (or the
respective rates of interest or Yields to Maturity of all the
Securities, as the case may be, 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 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 each such
series or of all the Securities, in each case voting as a single
class, then Outstanding, by written notice to the Issuer, FCX and
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 accrued 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 Debt 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 the Stated 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 such Securities of such series, and such Coupons,
if any, 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 principal of and interest on
Securities of such series be overdue.
Without limiting the rights of the Trustee under the FCX
Guarantee, if an Event of Default occurs and is continuing, 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 to protect and enforce its rights
and the rights of the Holders by such appropriate judicial
proceeding as the Trustee may deem most effectual to protect and
enforce any such rights, 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 any other obligor
upon the Securities of such series and collect in the manner
provided by law out of the property of the Issuer or any other
obligor upon the Securities of such series, wherever situated the
monies adjudged or decreed to be payable.
In the case of any judicial proceeding relating to the
Issuer, FCX or any other obligor upon the Securities of such
series, or the property or creditors of the Issuer, FCX or any
such obligor, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act of 1939 in order
to have claims of the Holders and the Trustee allowed in any such
proceeding. In addition, unless prohibited by applicable law and
regulations, the Trustee shall be entitled and empowered to vote
on behalf of the Holders of Securities of any series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceeding or a Person providing similar functions in comparable
proceedings.
The Trustee shall be authorized to collect and receive any
monies 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 and all other amounts due to the Trustee or any predecessor
Trustee pursuant to Section 6.6.
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
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 series, may be prosecuted and
enforced by the Trustee without the possession of any of the
Securities of such series or Coupons appertaining to such series
or the production thereof on any trial or other proceedings
relative thereto, and any such action or proceedings instituted
by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements, advances 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 of such series or Coupons appertaining
thereto in respect of which 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 of 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 monies 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
monies on account of principal or interest, upon presentation of
the several Securities and Coupons appertaining thereto in
respect of which monies have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of
the same series, of like tenor, 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 the Securities of such series in respect
of which monies have been collected, including any and
all amounts due the Trustee under Section 6.6;
SECOND: In case the principal of the Securities
of such series in respect of which monies 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 monies 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 monies
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 or any Securityholder shall
have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee or
to such Securityholder, then and in every such case, subject to
any determination in such proceeding, the Issuer, FCX, the
Trustee and the Securityholders shall be restored severally and
respectively to their former positions and rights hereunder, and
thereafter all rights, remedies and powers of the Issuer, FCX,
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, judicial or otherwise, 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 (i) such Holder previously shall have
given to the Trustee written notice of a continuing Event of
Default as hereinbefore provided, (ii) the Holders of not less
than 25% in aggregate principal amount of the Securities of such
affected series then Outstanding, treated as a single class,
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; (iii) 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 proceedings;
and (iv) 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 of
the Securities of such series or Coupons and the Trustee, that no
one or more Holders of Securities of such series shall have any
right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the
rights of any other Holder of Securities or 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 (together with any additional
amounts payable with respect to such Securities) such Security or
Coupon and any interest in respect of a Default in the payment of
any such amounts, on or after the respective due dates expressed
in such Security or Coupon or Redemption Dates prescribed for
therein, or to institute suit for the enforcement of any such
payment rights 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 Section
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 any
of the 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 Securityholders. 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 exercising any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee by this Indenture
with respect to or for the benefit of such Securities of such
series; provided that such direction shall not be otherwise than
in accordance with applicable 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 be lawfully taken or that the action or
proceeding so directed may expose the Trustee to personal
liability or if the Trustee in good faith by its board of
directors or the executive committee thereof shall so determine
that the actions or forbearances 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 forbearances 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 by
Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the Securities
of any series 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 the Securities of such series waive any past
Default or Event of Default hereunder with respect to the
Securities of such series and its consequences, except a Default
(a) in the payment of principal or interest on any Security of
such series or in respect to the conversion of any such
Securities or (b) in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the
Holder of each Security affected.
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. In the case of any such waiver, the Issuer, FCX, the
Trustee and the Holder 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.
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 3.8, at least once in an Authorized
Newspaper in Luxembourg) and (ii) to all Holders of Securities of
such affected series in the manner and to the extent provided in
Section 4.4(c), unless such defaults shall have been cured before
the mailing or publication of such notice (the term "default" or
"defaults" for the purposes of this Section 5.11 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.
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 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 other than the Trustee 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 including the Trustee, 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 Outstanding, 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
particular series has occurred (which has not been cured or
waived) the Trustee shall exercise 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 willful 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, certificates 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 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 from the Issuer or FCX
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,
Officers' Certificate or any other certificate, statement,
instrument, opinion, report, notice, request, direction.
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 or FCX mentioned herein shall be sufficiently
evidenced by an Officers' Certificate (unless other evidence
in respect thereof be herein specifically prescribed), and
any Board Resolution of the Issuer or FCX may be evidenced
to the Trustee by a copy thereof certified by any managing
director of the Issuer, in the case of a Board Resolution of
the Issuer, and by the secretary or assistant secretary of
FCX in the case of a Board Resolution of FCX;
(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, suffered 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 then Outstanding of the
one or more series to which the Event of Default relates;
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
examination 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 FCX, 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. 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, FCX 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 Section 6.12, if operative,
may otherwise deal with the Issuer and FCX and receive, collect,
hold and retain collections from the Issuer and FCX with the same
rights it would have if it were not the Trustee or such agent.
SECTION 6.5 Monies Held by Trustee. Subject to the
provisions of Section 10.4 hereof, all monies 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 monies received by it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and
Its Prior Claim. The Issuer and FCX, jointly and severally,
covenant and agree 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 and
FCX, jointly and severally, covenant and agree 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 and FCX, jointly
and severally, also covenant 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 but not limited to
the costs and expenses of defending itself against or
investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The obligations of the Issuer and FCX 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 payment of principal of
or interest on particular Securities or Coupons, and the
Securities are hereby subordinated to such senior claim. When
the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1 or in
connection with Article Five hereof, the expenses (including the
reasonable fees and expenses of its counsel) and the compensation
for the services in connection therewith are intended to
constitute expenses of administration under any bankruptcy law.
SECTION 6.7 Right of Trustee to Rely on Officers'
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 Officers'
Certificate of the Issuer or FCX 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 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 $50,000,000, 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 the common control with any
obligor upon any Securities issued hereunder. 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 6.9.
The provisions of this Section 6.8 are in furtherance of and
subject to Section 310(a) of the Trust Indenture Act of 1939.
SECTION 6.9 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. 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 of the Issuer, 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 giving 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 310(b) of the Trust Indenture Act of
1939 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 for
at least six months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.8 or Section
310(a) of the Trust Indenture Act of 1939 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
Issuer, 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 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 such series
and appoint a successor trustee with respect to 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 6.9 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 6.10.
(e) The Issuer shall give notice of each resignation
and each removal of the Trustee of each series of Securities and
each appointment of a successor trustee with respect to any such
series by mailing written notice of such an event by first-class
mail, postage prepaid, to the Holders of Registered Securities of
such series as their names and addresses appear in the Security
register. If any Unregistered Securities of a series affected
are then Outstanding, notice of such resignation shall be given
to the Holders thereof, (i) 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 3.8, at least once in an Authorized
Newspaper in Luxembourg) and (ii) by mailing notice to those
Holders of Unregistered Securities who have furnished their names
and addresses to the Trustee for such purpose within the two
years preceding the giving of such notice. Each notice shall
include the name of the successor trustee for such series and the
address of its principal corporate trust office.
SECTION 6.10 Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 6.9 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 shall
become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations of its predecessor hereunder with
respect to such series, 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 monies 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 as such shall, nevertheless,
retain a prior claim upon all property or funds held or collected
by it to secure any amounts then due to 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, FCX,
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
6.10 unless at the time of such acceptance such successor trustee
shall be qualified under the provisions of Section 310(b) of the
Trust Indenture Act of 1939 and eligible under the provisions of
Section 6.8 and Section 310(a) of the Trust Indenture Act of
1939.
Upon acceptance of appointment by a successor trustee as
provided in this Section 6. 10, the Issuer shall (i) mail notice
thereof by first-class mail to the Holders of Registered
Securities at their last addresses as they shall appear in the
Security register, or (ii) in the case of Holders of Unregistered
Securities, publish such notice 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 3.8, at least once in an Authorized Newspaper in
Luxembourg) and mail such notice to those Holders of Unregistered
Securities who have filed their names and addresses with the
Trustee for such purpose within two years preceding the giving of
such notice. 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 6.9. If the Issuer fails to provide such notice
within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be
provided at the expense of the Issuer.
SECTION 6.11 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 of 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 310(b) of the Trust
Indenture Act of 1939 and eligible under the provisions of
Section 6.8 and Section 310(a) of the Trust Indenture Act of
1939, 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 6.12 Preferential Collection of Claims Against the
Issuer. If and when the Trustee shall be or become a creditor of
the Issuer or FCX (or any other obligor upon the Securities), the
Trustee shall be subject to the provisions of the Trust Indenture
Act regarding the collection of claims against the Issuer or FCX
(or any such other obligor).
SECTION 6.13 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, including 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 6.13 with respect
to one or more series of Securities, the Trustee may upon receipt
of a Company Order appoint a successor Authenticating Agent which
shall be acceptable to the Issuer 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, as agent of the Trustee, 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 Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar
tenor signed by such 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 such 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, the Issuer and FCX, 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
or his agent or proxy of any instrument, or the authority of
such an agent or proxy to execute such 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. Prior to
surrender of a Security for registration of transfer, the Issuer,
FCX, the Trustee and any agent of the Issuer, FCX or the Trustee
may deem and treat the Person in whose name any Registered
Security shall be registered upon the Security register 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, FCX nor the Trustee nor any
agent of the Issuer, FCX or the Trustee shall be affected by any
notice to the contrary. The Issuer, FCX, the Trustee and any
agent of the Issuer, FCX 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, FCX, the
Trustee nor any agent of the Issuer, FCX or the Trustee shall be
affected by 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 monies payable upon any such
Unregistered Security or Coupon.
SECTION 7.4 Securities Owned by Issuer or FCX Deemed Not
Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Outstanding Securities have
concurred in any direction, consent or waiver under this
Indenture, Securities which are owned by the Issuer, FCX or any
other obligor on the Securities 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 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 of
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 Officers' Certificate listing and
identifying all Securities, if any, known by the Issuer to be
owned or held by or for the account of any of the above-described
Persons; and, subject to Sections 6.1 and 6.2, the Trustee shall
be entitled to accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of
any such determination.
SECTION 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 or 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, FCX, the Trustee and the Holders of all
the Securities.
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
Persons entitled to (i) waive any past Default with respect to
the Securities of such series in accordance with Section 5.10,
(ii) consent to any supplemental indenture in accordance with
Section 8.2 of this Indenture or (iii) waive compliance with any
term, condition or provision of any covenant hereunder (if this
Indenture should expressly provide for such waiver). 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, consent to any such supplemental
indenture or waive compliance with any such term, condition or
provision, 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 90th 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.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities of any
series entitled to join in the giving or making of (i) any notice
of Default, (ii) any request to institute proceedings referred to
in Section 5.6 or (iii) any direction referred to in Section 5.9,
in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of such series on such record date, and no
other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to
the applicable expiration date by Holders of the requisite
principal amount of Outstanding Securities of such series on such
record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action
for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and
of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the
requisite principal amount of Outstanding Securities of the
relevant series on the date such action is taken. Promptly after
any record date is set pursuant to this paragraph, the Trustee,
at the Issuer's expense, shall cause notice of such record date,
the proposed action by Holders and the applicable expiration date
to be given to the Issuer and FCX in writing and to each Holder
of Securities of the relevant series in the manner set forth in
Section 11.4.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer and FCX when authorized by Board
Resolutions of their respective Boards of Directors, (which
Resolutions 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 a Company 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 FCX or successive successions, and the
assumption by the successor entity of the respective
covenants, agreements and obligations of the Issuer or FCX
as applicable, under this Indenture or any supplemental
indenture;
(c) to add to the covenants of the Issuer or FCX such
further covenants, restrictions, conditions or provisions or
to surrender any right, power or option conferred by this
Indenture on the Issuer or FCX as the respective Boards of
Directors and the Trustee shall consider to be for the
protection or benefit of the Holders of all or any series of
Securities or Coupons of any series (and if such covenants
are to be for the benefit of less than all series of
Securities, stating that such covenants are being added
solely for the benefit of such series), 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, condition 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 in regard to
matters or questions under this Indenture or any
supplemental indenture as the Issuer or FCX may deem
necessary or desirable, provided, that no action under this
clause (d) 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;
(f) to make any change to comply with any requirement
of the Commission in connection with the qualification of
the Indenture under the Trust Indenture Act of 1939, as
amended;
(g) 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; and
(h) to allow FCX to directly assume, pursuant to
Section 9.3, the due and punctual payment of the principal
of and interest on all the Securities of any or all series
and the performance of the covenants in the Indenture on the
part of the Issuer to be performed or observed.
The Trustee is hereby authorized to join with the Issuer and
FCX 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, immunities or liabilities 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 Issuer and FCX, when authorized by Board
Resolutions of their respective Boards of Directors, (which
Resolutions 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 a Company 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 alter the method of computation) of interest thereon, or
reduce (or alter the method of computation) any amount payable on
redemption or repayment thereof or extend the time for payment
thereof, or make the principal thereof (including any amount in
respect of original issue discount), or interest (together with
any additional amounts payable with respect to such Security)
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, (b) reduce the aforesaid
percentage of principal amount of Securities of any series the
consent of the Holders of which is required for any such
supplemental indenture to less than a majority, or reduce the
percentage of Securities of such series necessary to consent to
waive any past Default under this Indenture to less than a
majority, or modify any of the provisions of this Section or
Section 5.10, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived, in each case, without the consent of the
Holder of each Security so affected, or (c) change in any manner
adverse to the interests of the Holders of any Securities of any
series the terms and conditions of the obligations of FCX
pursuant to the FCX Guarantee without the consent of the Holder
of each Security of such series then Outstanding 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 of Coupons appertaining to such
Securities, or which modifies the rights of Holders of Securities
of such series 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 Issuer and FCX, accompanied by
copies of Board Resolutions of the Board of Directors of each of
the Issuer and FCX (which resolutions 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 a Company Order) certified by any managing director
of the Issuer and the secretary or an assistant secretary of FCX
authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of
Securityholders and other documents, if any, required by Section
7.1 the Trustee shall join with the Issuer and FCX in the
execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties, immunities or
liabilities 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, FCX, and the
Trustee of any supplemental indenture pursuant to the provisions
of this Section, the Issuer shall give notice thereof setting
forth in general terms the substance of such supplemental
indenture, (i) to the Holders of the 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 for such purpose within two years
preceding the giving of such notice, 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 3.8, at least once in an Authorized
Newspaper in Luxembourg). 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, FCX, 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
Officers' Certificate and an Opinion of Counsel as conclusive
evidence of any series that any such supplemental indenture
complies with the applicable provisions of this Indenture and
that the execution of such supplemental indenture is authorized
or permitted by 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 respective Boards
of Directors of the Issuer and FCX, to any modification of this
Indenture contained in any such supplemental indenture may be
prepared by the Issuer with the FCX Guarantee endorsed thereon,
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 of the Issuer Not to Merge,
Consolidate, Sell or Convey Property Except Under Certain
Conditions. The Issuer covenants that it will not merge with or
into or consolidate with any Person or sell, convey, transfer,
lease or otherwise dispose of all or substantially all of its
assets to any Person and the Issuer shall not permit any Person
to consolidate with or merge into the Issuer or sell, convey,
transfer, lease or otherwise dispose of all or substantially all
of its assets to the Issuer, unless (i) either the Issuer (in the
case of a merger) shall be the continuing corporation, or the
successor corporation or the Person which acquires by sale,
conveyance, transfer, lease or disposition all or substantially
all of the assets of the Issuer (if other than the Issuer) shall
be a corporation organized under the laws of the United States of
America or any State thereof or the District of Columbia, or
under the laws of The Netherlands, and shall expressly assume, by
supplemental indenture, in form satisfactory to the Trustee,
executed and delivered to the Trustee by such corporation
pursuant to Article Eight hereof, all of the payment obligations
of the Issuer pursuant to this Indenture and the Securities of
all series and Coupons, if any, appertaining thereto; (ii)
immediately after giving effect to such merger, consolidation,
sale, conveyance, transfer, lease or disposition and treating any
Debt which becomes an obligation of the Issuer as a result of
such transaction as having been incurred by the Issuer at the
time of such transaction, no Default or Event of Default shall
have occurred and be continuing.
SECTION 9.2 Successor Corporation Substituted. In case of
any such consolidation, merger, sale, conveyance, transfer, lease
or disposition, and following such an assumption by the successor
corporation, such successor corporation shall succeed to and be
substituted for the Issuer, with the same effect as if it had
been named herein. Except as provided in the last paragraph of
this Section, when the successor entity assumes all obligations
of the Issuer hereunder, all obligations and covenants of the
Issuer hereunder or under the Securities shall terminate.
Such successor corporation 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 theretofore shall not have been signed by the
Issuer and delivered to the Trustee; and, upon the order of such
successor corporation, 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 and Coupons appertaining thereto, if any, with the FCX
Guarantee endorsed thereon which previously shall have been
signed and delivered by the managing directors of the Issuer to
the Trustee for authentication, and any Securities together with
any Coupons appertaining thereto which such successor corporation
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, conveyance,
transfer, lease or disposition such changes in phraseology 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 sale, conveyance, transfer or
disposition (other than a conveyance by way of lease) covered by
this Section 9.2, the Issuer (or any successor corporation 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 Assumption by FCX. Notwithstanding anything in
this Article Nine to the contrary, FCX may at any time, in its
sole discretion, directly assume, by an indenture supplemental
hereto, the due and punctual payment of the principal of and
interest on all the Securities of any series and the performance
of every covenant of this Indenture on the part of the Issuer to
be performed or observed and upon any such assumption under this
Section 9.3, FCX shall succeed to and be substituted in all
respects for and may exercise every right and power of the Issuer
under this Indenture with the same effect as if FCX had been
named as the Issuer herein and the Issuer shall be released from
all of its obligations hereunder and under the Securities;
provided, that the covenants that were applicable to FCX as a
guarantor under this Indenture prior to such assumption shall
continue to be applicable to FCX after such assumption. No such
assumption shall be permitted unless FCX has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel for
FCX, each stating that such assumption and supplemental indenture
comply with this Article.
SECTION 9.4 Opinion of Counsel to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, may receive an
Opinion of Counsel prepared in accordance with Section 11.5 as
conclusive evidence that any such consolidation, merger, sale,
transfer, 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 MONIES
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 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), as and when the same shall have become
due and payable, or (b) the Issuer shall have delivered to the
Trustee for cancellation all Securities of such series
theretofore authenticated and all unmatured Coupons appertaining
thereto (other than any Securities and Coupons appertaining
thereto of such series which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in
Section 2.9) or (c) provided that FCX has theretofore assumed the
obligations of the Issuer under the Indenture and the Securities
of such series as provided in Section 9.3 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 (x) shall
have become due and payable or (y) 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 monies repaid by the Trustee or any paying agent to the
Issuer in accordance with Section 10.4) or specifically pledged
as security for and dedicated solely to the benefit of the
Holders of the Securities of such series and Coupons appertaining
thereto, (x) cash in an amount, or (y) 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 not later than one day
before the due date of payments in respect of the Securities, or
(z) a combination thereof, sufficient (without investment of such
cash or reinvestment of any interest or proceeds from such U.S.
Government Obligations) in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay the
principal of and interest on all Securities of such series and
Coupons appertaining thereto on each date that such principal or
interest is due and payable (whether at maturity of through
operation of a mandatory sinking fund other than any redemption
at the option of the Holder); and if, in any such case, the
Issuer shall also pay or cause to be paid all other sums payable
hereunder by the Issuer, all of the Securities of such series and
any Coupons appertaining thereto shall be deemed paid and
discharged and the provisions of this Indenture with respect to
such Securities and Coupons, shall cease to be of further effect
(except as to (i) rights of registration of transfer and exchange
of Securities of such series or Coupons appertaining thereto, and
the Issuer's right of optional redemption, if any, (ii)
substitution of mutilated, defaced or apparently destroyed, lost
or stolen Securities or Coupons, (iii) rights of the Holders of
Securities and Coupons appertaining thereto to receive from the
property so deposited payments of principal thereof and interest
on the original stated due dates therefor (but not upon
acceleration) or the Redemption Date therefor, as the case may be
and remaining rights of Holders to receive mandatory sinking fund
payments, if any, (iv) the rights, obligations and immunities of
the Trustee hereunder, including any right to compensation,
reimbursement of expenses and indemnification under Section 6.6,
(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 Sections
3.2), and the Trustee, on demand of the Issuer accompanied by an
Officers' Certificate and an Opinion of Counsel, which complied
with Section 11.5, stating that the provisions of this Section
have been complied with 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. In
addition, in connection with the satisfaction and discharge
pursuant to clause (c)(i)(y) above, the Trustee shall give notice
to the Holders of Securities of such satisfaction and discharge.
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,
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Issuer and FCX to the Trustee
under Section 6.6 shall survive.
(B) The following provisions shall apply to the
Securities of each series unless specifically otherwise provided
in a Board Resolution of the Board of Directors of the Issuer,
Officers' Certificate of the Issuer or indenture supplemental
hereto provided pursuant to Section 2.3. In addition to
discharge of the Indenture pursuant to Section 10.1(A), in the
case of any such series of Securities the exact or maximum
amounts (including the currency of payment) of principal and
interest due on which can be determined at the time of making the
deposit referred to in Clause 10.1(B)(x)(a) below: (x) the
Issuer shall be deemed to have paid and discharged the entire
indebtedness on all Securities of such a series and the Coupons
appertaining thereto on the 91st day after the date of the
deposit referred to in Clause 10.1(B)(x)(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 Coupons
appertaining thereto and the Issuer's right of optional
redemption, if any, (ii) substitution of mutilated, defaced or
apparently destroyed, lost or stolen Securities or Coupons, (iii)
rights of Holders of Securities or Coupons appertaining thereto
to receive from the property so deposited payments of principal
thereof and interest thereon on the original stated due dates
therefor (but not on acceleration) or the Redemption Date
therefor, as the case may be, 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, including any right to compensation, reimbursement of
expenses and indemnification under Section 6.6, (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 and the rights of the Holders of
the Securities under Sections 3.2), (hereinafter "defeasance"),
and the Trustee, at the expense of the Issuer, shall at the
Issuer's request, execute proper instruments acknowledging the
same, if the Issuer notifies the Trustee that the provisions of
this Section 10.1(B) are being complied with solely to effect a
defeasance and if
(a) provided that FCX has theretofore assumed the
obligations of the Issuer under the Indenture and the
Securities as provided in Section 9.3, with reference to
this provision the Issuer has irrevocably deposited or
caused to be irrevocably deposited with the Trustee as trust
funds in trust for the purpose of making the following
payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of 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 in Dollars,
U.S. Government Obligations, maturing as to principal and
interest at such times and in such amounts as will insure
(without investment of such cash or reinvestment of any
interest or proceeds from such U.S. Government Obligations)
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 the
principal of and interest on all Securities of such series
and Coupons appertaining thereto on each date that such
principal and interest is due and payable (whether at
maturity or upon redemption (through operation of a
mandatory sinking fund or otherwise) other than any
redemption at the option of the Holder);
(b) no Default or Event of Default or event, which,
with notice or the lapse of time or both, would become an
Event of Default with respect to the Securities of such
series shall have occurred and be continuing on the date of
such deposit or, insofar as Sections 5.1(e) and (f) are
concerned, at any time during the period ending on and
including the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed
satisfied until the expiration of such period);
(c) such defeasance shall not cause the Trustee to
have a conflicting interest for purposes of the Trust
Indenture Act of 1939 with respect to any securities of the
Issuer;
(d) such defeasance shall not result in a breach or
violation of, or constitute a Default under, this Indenture
or any Securities of such series;
(e) the Issuer has delivered to the Trustee an Opinion
of Counsel to the effect (i) that the Holders of the
Securities of such series and the Coupons appertaining
thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such defeasance and will
be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the
case if such deposit, defeasance and discharge had not
occurred; and (ii) that the trust arising from such deposit
shall not constitute an "investment company" or an entity
"controlled" by an "investment company" as such terms are
defined in the Investment Company Act of 1940, as amended;
(f) the Issuer has paid or caused to be paid all other
sums then payable hereunder by the Issuer and the Issuer has
delivered to the Trustee an Officers' 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;
(C) The Issuer and FCX shall each be released from
their obligations under Articles Nine, Fourteen and any other
covenants specified pursuant to Section 2.3 with respect to the
Securities of any series and any Coupons appertaining thereto on
and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"). For this purpose, such
covenant defeasance means that, with respect to the outstanding
Securities of the applicable series, the Issuer may omit to
comply with and shall have no liability in respect of any term,
condition or limitation set forth in such Section or any such
covenant, whether directly or indirectly by reason of any
reference elsewhere herein to such Section or any such covenant
or by reason of any reference in such Section to any other
provision herein or in any other document and such omission to
comply shall not constitute an Event of Default under Section
5.1, but the remainder of this Indenture and such Securities and
Coupons shall be unaffected thereby. The following shall be the
conditions to application of this subsection (C) of this Section
10.1:
(a) the Issuer has irrevocably deposited or caused to
be irrevocably deposited with the Trustee as trust funds in
trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of 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
payment 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 in an amount 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 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 (whether at
maturity or upon redemption (through operation of a
mandatory sinking fund or otherwise) other than any
redemption at the option of the Holder);
(b) no Default or Event of Default or event which with
notice or lapse of time or both would become an Event of
Default with respect to the Securities shall have occurred
and be continuing on the date of such deposit or, insofar as
subsections 5.1(d) and (e) are concerned, at any time during
the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not
be deemed satisfied until the expiration of such period);
(c) such covenant defeasance 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;
(d) such covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section
310(b) of the Trust Indenture Act of 1939;
(e) such covenant defeasance shall not cause any
Securities then listed on any registered national securities
exchange to be delisted;
(f) the Issuer shall have delivered to the Trustee an
Opinion of Counsel to the effect (i) 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 covenant defeasance and
will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred; and
(ii) that the trust arising from such deposit shall not
constitute an "investment company" or an entity "controlled"
by an "investment company" as such terms are defined in The
Investment Company Act of 1940, as amended; and
(g) the Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each
stating that all conditions precedent relating to the
covenant 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 monies and
securities 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 monies or securities have
been deposited with the Trustee, of all sums due and to become
due thereon for principal and interest; but such monies or
securities need not be segregated from other funds except to the
extent required by law.
SECTION 10.3 Repayment of Monies Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture
with respect to the Securities of any series, all monies then
held by any paying agent under the provisions of this Indenture
with respect to such series 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 monies.
SECTION 10.4 Return of Monies Held by Trustee and Paying
Agent Unclaimed for Two Years. Any monies or U.S. Government
Obligations deposited with or paid to the Trustee or any paying
agent for the payment of the principal of and 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 and 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
monies shall thereupon cease; provided, however, that the Trustee
or such paying agent, before being required to make any such
repayment with respect to monies 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 for such purpose
within two years preceding the giving of such notice, 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
City of New York and once in an Authorized Newspaper in London
(and, if required by Section 3.8, at least once in an Authorized
Newspaper in Luxembourg) notice, that such monies 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 and FCX, jointly and severally, 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 Incorporators, Stockholders, Officers and
Directors of Issuer and FCX Exempt from Individual Liability. No
recourse shall be had for the payment of the principal of, or
interest on any Security, any Coupon appertaining thereto or the
FCX Guarantee, for any claim based thereon, or otherwise in
respect thereof, or based on or in respect of this Indenture or
any indenture supplement thereto, against any incorporator,
stockholder, officer or director, as such, past, present or
future, of the Issuer, FCX or any successor corporation, either
directly or through the Issuer, FCX or any successor corporation,
whether by virtue of constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance of such Security and any
Coupons appertaining thereto and as part of the consideration for
the issue thereof, expressly waived and released; provided, that
nothing in this paragraph shall limit recourse against FCX in
respect of the FCX Guarantee or constitute a waiver of any rights
which by law cannot be waived.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders. Nothing in this Indenture or in the
Securities or in Coupons appertaining thereto, expressed or
implied, shall give or be construed to give to any Person, 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 the Holders of the Securities or Coupons, if any.
SECTION 11.3 Successors and Assigns of Issuer and FCX Bound
by Indenture. Except as provided in Section 9.3, all covenants
and agreements in this Indenture by the Issuer or FCX shall bind
their respective successors and assigns (whether by merger,
consolidation or otherwise), whether so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, FCX, the Trustee
and Securityholders. Any notice or demand which by any provision
of this Indenture is required or permitted to be given or served
by the Trustee or by the Holders of Securities or Coupons to or
on the Issuer or FCX 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 or FCX is filed by the Issuer or FCX with the Trustee)
to the Issuer, c/o FCX, 1615 Poydras Street, New Orleans,
Louisiana 70112, Attention: Corporate Secretary. Any notice,
direction, request or demand by the Issuer, FCX or any
Securityholder to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or
made at the Corporate Trust Office, 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, notice shall be (i) mailed to those
Holders of Unregistered Securities who have filed their names and
addresses for this purpose with the Trustee within two preceding
years of giving such notice, with such notice being 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 and
(ii) published at least once in an Authorized Newspaper in the
City of New York, and at least once in an Authorized Newspaper in
London (and, if required by Section 3.8, at least once in an
Authorized Newspaper in Luxembourg). 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 and Securityholders 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 satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice.
SECTION 11.5 Officers' Certificate and Opinions of Counsel,
Statements to Be Contained Therein. Upon any application or
demand by the Issuer or FCX, as applicable, to the Trustee to
take any action under any of the provisions of this Indenture,
the Issuer or FCX, as applicable, shall furnish to the Trustee an
Officers' 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.
Except as provided in Sections 3.5, 12.5 and 14.3, 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 providing such opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based, (c)
a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with and (d) a statement as to
whether or not, in the opinion of such Person, such condition or
covenant has been complied with.
Any certificate, statement or opinion of an officer of the
Issuer or FCX, as applicable, 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 Issuer or FCX, as
applicable, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer or FCX,
as applicable, 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
Issuer or FCX, as applicable, or of counsel may be based, insofar
as it relates to accounting matters, upon a certificate or
opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer or FCX, as applicable,
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 Security
shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or of the Securities of such series)
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 hereof limits,
qualifies or conflicts with the duties imposed by any of Sections
310 through 317, inclusive, of the Trust Indenture Act of 1939 or
with another provision hereof which is required to be included by
any of Section 310 through 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, the
FCX Guarantee and each Security shall each 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 said
State, except that matters relating to the authorization and
execution by the Issuer of this Indenture and the Securities
shall be governed by the laws of The Netherlands.
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 11.10Effect 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 11.11Securities in a Foreign Currency or in ECU.
Unless otherwise specified in an Officers' 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(g) or (h).
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 11.12Judgment Currency. The Issuer and FCX agree,
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.
SECTION 11.13Submission to Jurisdiction. The Issuer agrees
that any legal suit, action or proceeding arising out of or
relating to the Indenture, the Securities or the FCX Guarantee
may be instituted in any state or federal court in the State and
County of New York, United States of America and to the extent it
may lawfully do so, the Issuer hereby waives, and agrees not to
assert, by way of motion, as a defense or otherwise, in any such
suit, action or proceeding any claim which it may now or
hereafter have that it is not personally subject to the
jurisdiction of the above-named courts, that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of
the suit, action or proceeding is improper or that this Indenture
or the subject matter hereof may not be enforced by such court,
and irrevocably submits to the jurisdiction of any such court in
any such suit, action or proceeding. The Issuer hereby
designates FCX as the Issuer's authorized agent to accept and
acknowledge on its behalf service of any and all process which
may be served in any such suit, action or proceeding in any such
court and agrees that service of process upon said agent at its
office at 1615 Poydras Street, New Orleans, Louisiana 70112, and
written notice of said service to the Issuer, mailed or delivered
to it, at , The Netherlands, shall be
deemed in every respect effective service of process upon the
Issuer in any such suit, action or proceeding and shall be taken
and held to be valid personal service upon the Issuer, whether or
not the Issuer shall then be doing, or at any time shall have
done, business within the State of New York, and that any such
service of process shall be of the same force and validity as if
service were made upon it according to the laws governing the
validity and requirements of such service in such State, and
waives all claim of error by reason of any such service. Said
designation and appointment shall be irrevocable until the
Indenture shall have been satisfied and discharged in accordance
with Article 10 and until all amounts due under Section 6.6 shall
have been paid.
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. Notice of redemption to
the Holders of Registered Securities to be redeemed as a whole or
in part at the option of the Issuer shall be given in the manner
provided in Section 11.4, at least 30 days and not more than 60
days prior to the date fixed for redemption to such Holders of
Securities. Any notice to be given by publication in an
Authorized Newspaper or Newspapers shall be published at least
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 Redemption Date, the applicable
Redemption Price, and, if the Redemption Price was required to be
calculated accordingly, or 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 a mandatory or optional sinking fund,
or both, if such be the case, that interest accrued to the
Redemption Date will be paid as specified in said notice and that
on and after said Redemption 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.
At least one Business Day prior to the Redemption Date
specified in the notice of redemption given as provided in this
Section, the Issuer will deposit with the Trustee or with one or
more paying agents (or, if the Issuer is acting as its own paying
agent, 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 to be redeemed
at the appropriate Redemption Price, together with accrued
interest to and including the Redemption Date. If less than all
Securities of any series are to be redeemed, the Issuer will
deliver to the Trustee at least 70 days prior to the date fixed
for redemption an Officers' 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 Officers' 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
provisions relating to the redemption of Securities of any series
shall relate, in the case of any Security redeemed or to be
redeemed only in part, to the portion of the principal amount of
such Security which has been or is to be redeemed. In case of a
redemption at the election of the Issuer prior to the expiration
of any restriction on such redemption, the Issuer shall deliver
to the Trustee, prior to the giving of any notice of redemption
to Holders pursuant to this Section, an Officers' Certificate
stating that such restriction has been complied with.
SECTION 12.3 Payment of Securities Called for Redemption. If
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 Redemption Date and at the
place stated in such notice at the applicable Redemption Price,
together with interest accrued to and including the Redemption
Date, and on and after said Redemption Date (unless the Issuer
shall default in the payment of such Securities at the Redemption
Price, together with interest accrued to said Redemption 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 such Securities
shall cease from and after the Redemption Date to be entitled to
any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities to be
redeemed except the right to receive the applicable Redemption
Price thereof and unpaid interest to and including the Redemption
Date. On surrender of such Securities at a place of payment
specified in said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such
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 and including the
Redemption Date; provided that any payment of interest becoming
due on or prior to the Redemption Date 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, registered as such on the
relevant Regular 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 Redemption Date
at the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in 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, FCX
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 surrender 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 for such series, of
authorized denominations, in principal amount equal to the
unredeemed portion of the Security so prescribed.
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
Officers' Certificate of the Issuer or FCX 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 or FCX, 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 FCX 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 Officers' 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 Officers'
Certificate (or reasonably promptly thereafter if acceptable to
the Trustee). Such Officers' 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 or cause to be delivered
such Officers' 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 and subject to the
limitations in Section 12.4, 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 monies 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 monies, 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 monies 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 monies in the sinking fund
for such series at the time when any such default or Event of
Default shall occur, and any monies 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 monies
shall thereafter be applied on the next succeeding sinking fund
payment date in accordance with this Section to the redemption of
such Securities.
ARTICLE THIRTEEN
FCX GUARANTEE OF SECURITIES
SECTION 13.1 Unconditional Guarantee. FCX hereby
unconditionally guarantees to each Holder of a Security of any
series authenticated and delivered by the Trustee, and to the
Trustee, the due and punctual payment of the principal of and
interest on such Security (together with any additional amounts
payable with respect to such Security), when and as the same
shall become due and payable, whether at the Stated Maturity any
Interest Payment Date, by acceleration, call for redemption or
otherwise, in accordance with the terms of such Security and of
this Indenture. FCX hereby agrees that its obligations hereunder
shall be absolute and unconditional, irrespective of, and shall
be unaffected by, any invalidity, irregularity or
unenforceability of any such Security (other than as provided in
the last paragraph of this Section 13.1) or this Indenture, any
failure to enforce the provisions of any such Security or this
Indenture, or any waiver, modification or indulgence granted to
the Issuer with respect thereto, by the Holder of such Security
or the Trustee; provided, that, notwithstanding the foregoing, no
such waiver, modification or indulgence shall, without the
consent of FCX, increase the aggregate principal amount of such
Securities or the interest rate or Yield to Maturity (in the case
of Original Issue Discount Securities) thereon except as provided
in such Security. FCX hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of
merger or bankruptcy of the Issuer, any right to require a
proceeding first against the Issuer, protest or notice with
respect to any such Security or the indebtedness evidenced
thereby and all demands whatsoever, and covenants that this FCX
Guarantee will not be discharged as to any such Security except
by payment in full of the principal of and interest thereon. The
FCX Guarantee constitutes a guarantee of payment and not of
collection.
FCX further agrees that, if at any time all or any part of
any payment theretofore made by the Issuer to the Holder of said
Security is or must be rescinded or returned by such Holder for
any reason whatsoever (including, without limitation, the
insolvency, bankruptcy or reorganization of the Issuer), the
Issuer's obligations under said Security shall, for the purposes
of the FCX Guarantee, to the extent that such payment is or must
be rescinded or returned, be deemed to have continued in
existence, notwithstanding such payment to the Holder, and the
FCX Guarantee shall continue to be effective or be reinstated, as
the case may be, as to such obligations, all as though such
payment to the Holder had not been made.
FCX shall be subrogated to all rights of the Holder of any
Securities against the Issuer in respect of any amounts paid to
the Holder by FCX pursuant to the provisions of the FCX
Guarantee; provided, however, that, as long as an Event of
Default has occurred and is continuing, FCX shall not be entitled
to enforce, or to receive any payments arising out of or based
upon, such right of subrogation until the principal of, and
interest on all Securities shall have been paid in full in
accordance with the terms hereof and of the Securities.
No set-off, counterclaim, reduction, or diminution of an
obligation, or any defense of any kind or nature which FCX has or
may have against the Issuer or the Trustee or any Holder of a
Security shall be available hereunder to FCX or any assignee or
successor of FCX against the Trustee or any Holder of a Security;
provided, that FCX shall not be prevented from asserting against
the Issuer or the Trustee or any Holder of a Security in a
separate action any claim, action, cause of action or demand that
FCX shall have, whether or not arising out of the FCX Guarantee.
Notwithstanding the foregoing, FCX shall have the right to assert
any compulsory counterclaim against any Holder of a Security or
the Trustee in any proceeding whether or not arising out of the
FCX Guarantee.
The FCX Guarantee set forth in this Section shall not be
valid or become obligatory for any purpose with respect to a
Security of any series until the certificate of authentication on
such Security shall have been signed by the Trustee.
SECTION 13.2 Execution of the FCX Guarantee. FCX hereby
agrees to execute the FCX Guarantee in substantially the form set
forth in this Indenture to be endorsed on each Security
authenticated and delivered by the Trustee pursuant to the
Indenture. Such FCX Guarantee shall be signed on behalf of FCX
by an Authorized Signatory of FCX or such Authorized Signatory's
duly authorized attorney, prior to the authentication of the
Security on which it is endorsed, and the delivery of such
Security by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of such FCX Guarantee on
behalf of FCX. Such signature may be a manual or facsimile
signature and may be imprinted or otherwise reproduced on the FCX
Guarantee, and for that purpose FCX may adopt and use the
facsimile signature of any such duly Authorized Signatory or
attorney, and if any such duly Authorized Signatory or attorney
who shall have signed the FCX Guarantee shall cease to be a duly
Authorized Signatory or attorney of FCX before the Security on
which such FCX Guarantee is endorsed shall have been
authenticated and delivered by the Trustee or disposed of by the
Issuer, such Security nevertheless may be authenticated and
delivered or disposed of as though the duly Authorized Signatory
or attorney who signed such FCX Guarantee had not ceased to be a
duly Authorized Signatory or attorney of FCX. Typographical and
other minor errors or defects in any such reproduction of any
such signature shall not affect the validity or enforceability of
any FCX Guarantee endorsed on a Security which has been duly
authenticated and delivered by the Trustee.
ARTICLE FOURTEEN
COVENANTS OF FCX
SECTION 14.1 Covenant Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions. FCX covenants
that it will not merge with or into or consolidate with any
Person or sell, convey, transfer, lease or otherwise dispose of
all or substantially all of its assets to any Person and FCX
shall not permit any Person to consolidate with or merge into FCX
or sell, convey, transfer, lease or otherwise dispose of all or
substantially all of its assets to FCX, unless (i) either FCX (in
the case of a merger) shall be the continuing corporation, or the
successor corporation or the Person which acquires by sale,
conveyance, transfer, lease or disposition all or substantially
all of the assets of FCX (if other than FCX) shall be a
corporation organized under the laws of the United States of
America or any State thereof or the District of Columbia and
shall expressly assume, by supplemental indenture, in form
satisfactory to the Trustee, executed and delivered to the
Trustee by such corporation pursuant to Article Eight hereof, all
of the payment obligations of FCX pursuant to this Indenture and
the FCX Guarantee; (ii) immediately after giving effect to such
merger, consolidation, sale, transfer, conveyance, lease or
disposition and treating any Debt which becomes an obligation of
FCX as a result of such transaction as having been incurred by
FCX at the time of such transaction, no Default or Event of
Default shall have occurred and be continuing; and (iii) FCX has
delivered to the Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that such consolidation, merger, sale,
transfer, conveyance, lease or disposition and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture, complies with this Indenture and that all
conditions precedent herein provided for or relating to such
transaction have been complied with.
SECTION 14.2 Successor Corporation Substituted. In case of
any such consolidation, merger, sale, conveyance, transfer, lease
or disposition, and following such an assumption by the successor
entity, such successor corporation shall succeed to and be
substituted for FCX, with the same effect as if it had been named
herein.
Such successor corporation may cause the FCX Guarantee to be
endorsed either in its own name or in the name of FCX prior to
such succession on any or all of the Securities issuable
hereunder, which theretofore shall not have the FCX Guarantee
endorsed thereon, and delivered to the Trustee; and, upon the
order of such successor corporation, instead of FCX, and subject
to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any
Securities and Coupons appertaining thereto, if any, bearing the
FCX Guarantee which FCX previously endorsed thereon to the
Trustee for authentication, and any FCX Guarantee which such
successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All of the FCX
Guarantees so issued shall in all respects have the same legal
rank and benefit under this Indenture as the FCX Guarantee
theretofore or thereafter issued in accordance with the terms of
this Indenture, as though all of such FCX Guarantees had been
issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance,
transfer, lease or disposition such changes in phraseology and
form (but not in substance) may be made in the Securities and the
FCX Guarantee thereafter to be issued as may be appropriate.
In the event of any sale, conveyance, transfer or
disposition (other than a conveyance by way of lease) covered by
this Section 14.2, FCX (or any successor corporation 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 FCX Guarantee, and may be liquidated
and dissolved.
SECTION 14.3 Written Statement to Trustee. FCX will deliver
to the Trustee on or before March 31 in each year (beginning with
March 31, 1997) a brief certificate (which need not comply with
Section 11.5) from FCX signed by its principal executive officer,
principal financial officer or principal accounting officer
stating that in the course of the performance by the signer of
his duties as an officer of FCX, he would normally have knowledge
of any Default or non-compliance by FCX in the performance or
fulfillment of any covenant, agreement or condition of FCX,
contained in this Indenture, stating whether or not he has
knowledge of any such Default or non-compliance and, if so,
specifying each such Default or non-compliance of which the
signer has knowledge and the nature thereof.
SECTION 14.4 Reports by FCX. FCX will file with the
Trustee, within 15 days after FCX is required to file the same
with the Commission, copies of the annual reports and of the
information, documents, and other reports which FCX may be
required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act and, if FCX is not obligated to
file financial reports, documents or other reports with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act,
FCX will file with the Commission and furnish to the Trustee and
the Holders of the Securities the same financial reports,
documents or other reports as if FCX were so obligated.
ARTICLE FIFTEEN
SUBORDINATION - THE ISSUER
SECTION 15.1 Agreement to Subordinate. The Issuer covenants
and agrees, and each Holder of a Security or Coupon issued
hereunder, by his acceptance thereof, likewise covenants and
agrees, that all Securities and Coupons shall be issued subject
to the provisions of this Article; and each Person holding any
Security or Coupon, whether upon original issue or upon transfer,
assignment or exchange thereof, accepts and agrees that the
principal of and interest on all Securities and Coupons issued
hereunder shall, to the extent and in the manner herein set
forth, be subordinated and subject in right of payment to the
prior payment in full of all Senior Indebtedness of the Issuer,
and that the subordination is for the benefit of the holders of
the Senior Indebtedness of the Issuer.
SECTION 15.2 Payments to Securityholders. As to each series
of Securities and Coupons, if any, issued hereunder, in the event
(a) of any insolvency or bankruptcy proceedings, or any
receivership, dissolution, winding-up, total or partial
liquidation, reorganization or other similar proceedings in
respect of the Issuer or a substantial part of its property,
whether voluntary or involuntary, or (b) that (i) a default shall
have occurred with respect to the payment of principal of or
interest on or other monetary amounts due and payable with
respect to any Senior Indebtedness of the Issuer, or (ii) there
shall have occurred an event of default (other than a default in
the payment of principal or interest or other monetary amounts
due and payable) in respect of any Senior Indebtedness of the
Issuer, as defined in such Senior Indebtedness or in the
instrument under which the same is outstanding, permitting the
holder or holders thereof to accelerate the maturity thereof, and
such default or event of default shall not be cured or was
continued beyond the period of grace, if any, in respect thereof,
and such default or event of default shall not have been waived
or shall not have ceased to exist, or (c) separately with respect
to each series of Securities, that the principal of and accrued
interest on such Securities shall have been declared due and
payable pursuant to Section 5.1 and such declaration shall not
have been rescinded and annulled as provided in Section 5.1, then
the holders of all Senior Indebtedness shall first be entitled to
receive payment in full of all amounts due or to become due
thereon, or provision shall be made, in accordance with the terms
of such Senior Indebtedness, for such payment in money or money's
worth, before the Holders of such series of Securities or Coupons
are entitled to receive a payment on account of the principal of
or interest on the indebtedness evidenced by such series of
Securities or of such Coupons, including, without limitation, any
payments made pursuant to Article Twelve, or any cash payments to
purchase such series of Securities at the option of the Holders
thereof.
Upon any such insolvency or bankruptcy proceeding,
receivership, dissolution, winding-up, total or partial
liquidation, reorganization, or other similar proceeding referred
to in clause (a) of the immediately preceding paragraph, any
payment or distribution of assets of the Issuer of any kind or
character, whether in cash, property or securities, to which the
Holders of the Securities and any Coupon or the Trustee under
this Indenture would be entitled, except for the provisions
hereof, shall be paid by the Issuer or by any receiver, trustee
in bankruptcy, liquidating trustee, agent or other Person making
such payment or distribution or, to the extent required by the
next succeeding paragraph, by the Holders of the Securities or
any Coupons or the Trustee, if received by them or it, directly
to the holders of Senior Indebtedness of the Issuer (pro rata to
such holders on the basis of the respective amounts of Senior
Indebtedness of the Issuer held by such holders) or their
respective representatives, or to the trustee or trustees under
any indenture pursuant to which any instruments evidencing any of
such Senior Indebtedness may have been issued, as their
respective interests may appear, to the extent necessary to pay
all Senior Indebtedness of the Issuer in full after giving effect
to any concurrent payment or distribution to or for the holders
of Senior Indebtedness of the Issuer, before any payment or
distribution is made to the Holders of the indebtedness evidenced
by the Securities or any Coupons appertaining thereto (including
any cash payments to repurchase such Securities at the option of
the Holders thereof) or to the Trustee under this Indenture.
In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Issuer of any kind or
character, whether in cash, property or securities, prohibited by
the foregoing provisions of this section, shall be received by
the Trustee under this Indenture or the Holders of the Securities
or any Coupons before all Senior Indebtedness of the Issuer is
paid in full or provision is made for such payment in accordance
with its terms, and if such fact shall, at or prior to the time
of such payment or distribution, have been known to the Trustee,
then such payment or distribution shall be held in trust for the
benefit of and shall be paid over or delivered to the holders of
such Senior Indebtedness or their respective representatives, or
to the trustee or trustees under any indenture pursuant to which
any instruments evidencing any of such Senior Indebtedness may
have been issued, as their respective interests may appear, for
application to the payment of all Senior Indebtedness of the
Issuer remaining unpaid until all such Senior Indebtedness shall
have been paid in full in accordance with its terms, after giving
effect to any concurrent payment or distribution to or for the
holders of such Senior Indebtedness.
For purposes of this Article only, the words, "cash,
property or securities" shall not be deemed to include shares of
stock of the Issuer as reorganized or readjusted, or securities
of the Issuer or any other corporation provided for by a plan of
arrangement, reorganization or readjustment, the payment of which
is subordinated (at least to the extent provided in this Article
with respect to the Securities) to the payment of all Senior
Indebtedness of the Issuer which may at the time be outstanding;
provided that (i) the Senior Indebtedness of the Issuer is
assumed by the new corporation, if any, resulting from any such
arrangement, reorganization or readjustment, and (ii) the rights
of the holders of the Senior Indebtedness of the Issuer are not,
without the consent of such holders, altered by such arrangement,
reorganization or readjustment. The consolidation of the Issuer
with, or the merger of the Issuer with or into, another
corporation or the liquidation or dissolution of the Issuer
following the conveyance or transfer of all or substantially all
of its assets to another corporation upon the terms and
conditions provided in Article Nine shall not be deemed a
dissolution, winding-up, liquidation or reorganization for the
purposes of this section if such other corporation shall, as a
part of such consolidation, merger, conveyance or transfer,
comply with the conditions stated in Article Nine. Nothing in
this Section shall apply to claims of, or payments to, the
Trustee under or pursuant to Article Six, except as expressly
provided therein. This Section shall be subject to the further
provisions of Section 13.5.
SECTION 15.3 Subrogation. Subject to the payment in full of
all Senior Indebtedness of the Issuer, the Holders of the
Securities and any Coupons subject to the provisions of Section
13.2 shall be subrogated (equally and ratably with the holders of
all obligations of the Issuer which by their express terms are
subordinated to Senior Indebtedness of the Issuer to the same
extent as the Securities are subordinated and which are entitled
to like rights of subrogation) to the rights of the holders of
Senior Indebtedness of the Issuer to receive payments or
distributions of cash, property or securities of the Issuer
applicable to the Senior Indebtedness of the Issuer until the
principal of and interest on such Securities and the amounts owed
pursuant to any such Coupons shall be paid in full; and, for the
purpose of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of the Issuer of any cash,
property or securities to which the Holders of such Securities or
any such Coupons or the Trustee on their behalf would be entitled
except for the provisions of this Article, and no payment over
pursuant to the provisions of this Article to the holders of
Senior Indebtedness of the Issuer by Holders of such Securities
or any such Coupons or the Trustee on their behalf shall, as
between the Issuer, its creditors other than holders of Senior
Indebtedness of the Issuer and the Holders of such Securities or
any such Coupons, be deemed to be a payment by the Issuer to or
on account of such Senior Indebtedness; and no payments or
distributions of cash, property or securities to or for the
benefit of the Securityholders pursuant to the subrogation
provision of this Article, which would otherwise have been paid
to the holders of Senior Indebtedness of the Issuer, shall be
deemed to be a payment by the Issuer to or for the account of
such Securities. The provisions of this Article are intended
solely for the purpose of defining the relative rights of the
Holders of the Securities, on the one hand, and the holders of
the Senior Indebtedness of the Issuer, on the other hand.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as
between the Issuer, its creditors other than the holders of the
Issuer's Senior Indebtedness, and the Holders of the Securities,
the obligation of the Issuer, which is absolute and
unconditional, to pay to the Holders of the Securities the
principal of and interest on the Securities and the amounts owed
pursuant to any Coupons as and when the same shall become due and
payable in accordance with their terms, or is intended to or
shall affect the relative rights against the Issuer of the
Holders of the Securities and creditors of the Issuer other than
the holders of Senior Indebtedness of the Issuer, nor shall
anything herein or therein prevent the Holder of any Security or
the Trustee on his behalf from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article of the holders
of Senior Indebtedness of the Issuer in respect of cash, property
or securities of the Issuer received upon the exercise of any
such remedy.
Upon any payment or distribution of assets of the Issuer
referred to in this Article, the Trustee, subject to the
provisions of Sections 6.1 and 6.2, and the Holders of the
Securities and any Coupons shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in
which such insolvency, bankruptcy, dissolution, winding-up,
liquidation, arrangement or reorganization proceedings are
pending, or a certificate of the receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of the
Securities and of any Coupons, for the purpose of ascertaining
the Persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the
Issuer, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 15.4 Authorization by Securityholders. Each Holder
of a Security or Coupon by his acceptance thereof authorizes the
Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-fact for any and
all such purposes.
SECTION 15.5 Notice to Trustee. The Issuer shall give
prompt written notice to the Trustee and to any paying agent of
any fact known to the Issuer which would prohibit the making of
any payment of monies to or by the Trustee or any paying agent in
respect of the Securities or any Coupons pursuant to the
provisions of this Article. Regardless of anything to the
contrary contained in this Article or elsewhere in this
Indenture, the Trustee shall not be charged with knowledge of the
existence of any Senior Indebtedness of the Issuer or of any
default or event of default with respect to any such Senior
Indebtedness or of any other facts which would prohibit the
making of any payment of monies to or by the Trustee in respect
of the Securities or any Coupons, unless and until the Trustee
shall have received notice in writing (which may be by telegram,
telecopy or other similar writing) at its Corporate Trust Office
to that effect signed by an officer of the Issuer, or by a holder
or agent of a holder of Senior Indebtedness of the Issuer who
shall have been certified by the Issuer or otherwise established
to the reasonable satisfaction of the Trustee to be such holder
or agent, or by the trustee under any indenture pursuant to which
such Senior Indebtedness shall be outstanding, and, prior to the
receipt of any such written notice, the Trustee shall, subject to
Sections 6.1 and 6.2, be entitled to assume that no such facts
exist; provided that if on a date at least two Business Days
prior to the date upon which by the terms hereof any such monies
shall become payable for any purpose (including, without
limitation, the payment of the principal of or interest on any
Security) the Trustee shall not have received with respect to
such monies the notice provided for in this section, then,
regardless of anything herein to the contrary, the Trustee shall
have full power and authority to receive such monies and to apply
the same to the purpose for which they were received, and shall
not be affected by any notice to the contrary which may be
received by it on or after such prior date.
Regardless of anything to the contrary herein (but subject,
in the case of clause (a) of this paragraph, to the second
paragraph of Section 13.2), nothing shall prevent (a) any payment
by the Issuer or the Trustee to the Securityholders of amounts in
connection with a redemption of Securities if (i) notice of such
redemption has been given pursuant to Article Twelve prior to the
receipt by the Trustee of written notice as aforesaid, and (ii)
such notice of redemption is given not earlier than 60 days
before the Redemption Date, or (b) any payment by the Trustee to
the Securityholders of amounts deposited with it pursuant to
Section 10.1, provided, that, in the case of Section 10.1(B), the
applicable Securities are deemed to have been paid and
discharged, and in the case of Section 10.1(A), the Trustee shall
not have received, by at least two Business Days prior to the
date of execution of instruments acknowledging the satisfaction
of and discharge of this Indenture with respect to the applicable
Securities, the notice provided in the preceding paragraph.
Subject to Sections 6.1 and 6.2, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior Indebtedness
of the Issuer (or a trustee on behalf of such holder) to
establish that such notice has been given by a holder of Senior
Indebtedness of the Issuer or a trustee on behalf of any such
holder. In the event that the Trustee determines in good faith
that further evidence is required with respect to the right of
any Person as a holder of Senior Indebtedness of the Issuer to
participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence
to the reasonable satisfaction of the Trustee as to the amount of
such Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished
the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such
payment.
SECTION 15.6 Trustee's Relation to Senior Indebtedness. The
Trustee and any agent of the Issuer or the Trustee shall be
entitled to all the rights set forth in this Article with respect
to any Senior Indebtedness of the Issuer which may at any time be
held by it in its individual or any other capacity to the same
extent as any other holder of Senior Indebtedness and nothing in
Section 6.13 or elsewhere in this Indenture shall deprive the
Trustee or any such agent of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.6.
With respect to the holders of Senior Indebtedness of the
Issuer, the Trustee undertakes to perform or to observe only such
of its covenants and obligations as are specifically set forth in
this Article, and no implied covenants or obligations with
respect to the holders of such Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not
be deemed to owe any fiduciary duty to the holders of such Senior
Indebtedness and, subject to the provisions of Sections 6.1 and
6.2, the Trustee shall not be liable to any holder of such Senior
Indebtedness if it shall in good faith pay over or deliver to
Holders of Securities, the Issuer or any other Person monies or
assets to which any holder of such Senior Indebtedness shall be
entitled by virtue of this Article or otherwise.
SECTION 15.7 No Impairment of Subordination. No right of
any present or future holder of any Senior Indebtedness of the
Issuer to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure
to act on the part of the Issuer or by any act or failure to act,
in good faith, by any such holder, or by any noncompliance by the
Issuer with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such
holder may have or otherwise be charged with.
ARTICLE SIXTEEN
SUBORDINATION - FCX
SECTION 16.1 Agreement to Subordinate. FCX covenants and
agrees, and each Holder of a FCX Guarantee endorsed on any
Security issued hereunder, by his acceptance thereof, likewise
covenants and agrees, that such FCX Guarantee shall be issued
subject to the provisions of this Article; and each Person
holding such FCX Guarantee, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees that
the payment obligations of FCX thereunder shall, to the extent
and in the manner herein set forth, be subordinated and subject
in right of payment to the prior payment in full of all Senior
Indebtedness of FCX, and that the subordination is for the
benefit of the holders of the Senior Indebtedness of FCX.
SECTION 16.2 Payments to Securityholders. As to any FCX
Guarantee endorsed on the Securities of any series issued
hereunder, in the event (a) of any insolvency or bankruptcy
proceedings, or any receivership, dissolution, winding-up, total
or partial liquidation, reorganization or other similar
proceedings in respect of FCX or a substantial part of its
property, whether voluntary or involuntary, or (b) that (i) a
default shall have occurred with respect to the payment of
principal of or interest on or other monetary amounts due and
payable with respect to any Senior Indebtedness of FCX, or (ii)
there shall have occurred an event of default (other than a
default in the payment of principal or interest or other monetary
amounts due and payable) in respect of any Senior Indebtedness of
FCX, as defined in such Senior Indebtedness or in the instrument
under which the same is outstanding, permitting the holder or
holders thereof to accelerate the maturity thereof, and such
default or event of default shall not be cured or was continued
beyond the period of grace, if any, in respect thereof, and such
default or event of default shall not have been waived or shall
not have ceased to exist, or (c) separately with respect to each
series of Securities, that the principal of and accrued interest
on such Securities shall have been declared due and payable
pursuant to Section 5.1 and such declaration shall not have been
rescinded and annulled as provided in Section 5.1, then the
holders of all Senior Indebtedness of FCX shall first be entitled
to receive payment in full of all amounts due or to become due
thereon, or provision shall be made, in accordance with the terms
of such Senior Indebtedness, for such payment in money or money's
worth, before the Holders of such series of Securities are
entitled to receive a payment pursuant to the FCX Guarantee on
account of the principal of or interest on the indebtedness
evidenced by such series of Securities or of such Coupons,
including, without limitation, any payments made pursuant to
Article Twelve, or any cash payments to purchase such series of
Securities at the option of the Holders thereof.
Upon any such insolvency or bankruptcy proceeding,
receivership, dissolution, winding-up, total or partial
liquidation, reorganization, or other similar proceeding referred
to in clause (a) of the immediately preceding paragraph, any
payment or distribution of assets of FCX of any kind or
character, whether in cash, property or securities, to which the
Holders of the Securities and any Coupon or the Trustee under
this Indenture would be entitled, except for the provisions
hereof, shall be paid by FCX or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making
such payment or distribution or, to the extent required by the
next succeeding paragraph, by the Holders of the Securities or
any Coupons or the Trustee, if received by them or it, directly
to the holders of Senior Indebtedness of FCX (pro rata to such
holders on the basis of the respective amounts of such Senior
Indebtedness held by such holders) or their respective
representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of
such Senior Indebtedness may have been issued, as their
respective interests may appear, to the extent necessary to pay
all Senior Indebtedness of FCX in full after giving effect to any
concurrent payment or distribution to or for the holders of
Senior Indebtedness of FCX, before any payment or distribution is
made to the Holders of the indebtedness evidenced by the
Securities or any Coupons (including any cash payments to
repurchase such Securities at the option of the Holders thereof)
or to the Trustee pursuant to the FCX Guarantee under this
Indenture.
In the event that, notwithstanding the foregoing, any
payment or distribution of assets of FCX of any kind or
character, whether in cash, property or securities, prohibited by
the foregoing provisions of this section, shall be received by
the Trustee under this Indenture or the Holders of the Securities
or any Coupons before all Senior Indebtedness of FCX is paid in
full or provision is made for such payment in accordance with its
terms, and if such fact shall, at or prior to the time of such
payment or distribution, have been known to the Trustee, then
such payment or distribution shall be held in trust for the
benefit of and shall be paid over or delivered to the holders of
such Senior Indebtedness of FCX or their respective
representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of
such Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the payment
of all Senior Indebtedness of FCX remaining unpaid until all such
Senior Indebtedness of FCX shall have been paid in full in
accordance with its terms, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior
Indebtedness.
For purposes of this Article only, the words, "cash,
property or securities" shall not be deemed to include shares of
stock of FCX as reorganized or readjusted, or securities of the
Issuer or any other corporation provided for by a plan of
arrangement, reorganization or readjustment, the payment of which
is subordinated (at least to the extent provided in this Article
with respect to the Securities) to the payment of all Senior
Indebtedness of FCX which may at the time be outstanding;
provided that (i) the Senior Indebtedness of FCX is assumed by
the new corporation, if any, resulting from any such arrangement,
reorganization or readjustment, and (ii) the rights of the
holders of the Senior Indebtedness of FCX are not, without the
consent of such holders, altered by such arrangement,
reorganization or readjustment. The consolidation of FCX with,
or the merger of FCX with or into, another corporation or the
liquidation or dissolution of the Issuer following the conveyance
or transfer of all or substantially all of its assets to another
corporation upon the terms and conditions provided in Article
Fourteen shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this section if
such other corporation shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated
in Article Fourteen. Nothing in this section shall apply to
claims of, or payments to, the Trustee under or pursuant to
Article Six, except as expressly provided therein. This Section
shall be subject to the further provisions of Section 16.5.
SECTION 16.3 Subrogation. Subject to the payment in full of
all Senior Indebtedness of FCX, the Holders of the Securities and
any Coupons subject to the provisions of Section 16.2 shall be
subrogated (equally and ratably with the holders of all
obligations of FCX which by their express terms are subordinated
to Senior Indebtedness of FCX to the same extent as the
Securities are subordinated and which are entitled to like rights
of subrogation) to the rights of the holders of Senior
Indebtedness of FCX to receive payments or distributions of cash,
property or securities of FCX applicable to such Senior
Indebtedness until the principal of and interest on such
Securities and the amounts owed pursuant to any such Coupons
shall be paid in full; and, for the purpose of such subrogation,
no payments or distributions to the holders of the Senior
Indebtedness of FCX of any cash, property or securities to which
the Holders of such Securities or any such Coupons or the Trustee
on their behalf would be entitled pursuant to the FCX Guarantee,
except for the provisions of this Article, and no payment over
pursuant to the provisions of this Article to the holders of
Senior Indebtedness of FCX by Holders of such Securities or any
such Coupons or the Trustee on their behalf shall, as between
FCX, its creditors other than holders of its Senior Indebtedness
and the Holders of such Securities or any such Coupons, be deemed
to be a payment by FCX to or on account of its Senior
Indebtedness; and no payments or distributions of cash, property
or securities to or for the benefit of the Securityholders
pursuant to the subrogation provision of this Article, which
would otherwise have been paid to the holders of Senior
Indebtedness of FCX, shall be deemed to be a payment by FCX to or
for the account of such Securities. The provisions of this
Article are intended solely for the purpose of defining the
relative rights of the Holders of the Securities, on the one
hand, and the holders of the Senior Indebtedness of FCX, on the
other hand.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as
between FCX, its creditors other than the holders of its Senior
Indebtedness, and the Holders of the Securities, the obligation
of FCX, which is absolute and unconditional, to Guarantee payment
by the Issuer to the Holders of the Securities the principal of
and interest on the Securities and the amounts owed pursuant to
any Coupons as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect
the relative rights against FCX of the Holders of the Securities
and creditors of FCX other than the holders of Senior
Indebtedness of FCX, nor shall anything herein or therein prevent
the Holder of any Security or the Trustee on his behalf from
exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Indebtedness of FCX
in respect of cash, property or securities of FCX received upon
the exercise of any such remedy.
Upon any payment or distribution of assets of FCX referred
to in this Article, the Trustee, subject to the provisions of
Sections 6.1 and 6.2, and the Holders of the Securities and any
Coupons shall be entitled to rely upon any order or decree made
by any court of competent jurisdiction in which such insolvency,
bankruptcy, dissolution, winding-up, liquidation, arrangement or
reorganization proceedings are pending, or a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, delivered to
the Trustee or to the Holders of the Securities and of any
Coupons, for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior
Indebtedness of FCX and other indebtedness of FCX, the amount
thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article.
SECTION 16.4 Authorization by Securityholders. Each Holder
of an FCX Guarantee endorsed on any Security issued hereunder by
his acceptance thereof authorizes the Trustee on his behalf to
take such action as may be necessary or appropriate to effectuate
the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 16.5 Notice to Trustee. FCX shall give prompt
written notice to the Trustee and to any paying agent of any fact
known to FCX which would prohibit the making of any payment of
monies to or by the Trustee or any paying agent in respect of the
Securities or any Coupons pursuant to the provisions of this
Article. Regardless of anything to the contrary contained in
this Article or elsewhere in this Indenture, the Trustee shall
not be charged with knowledge of the existence of any Senior
Indebtedness of FCX or of any default or event of default with
respect to any Senior Indebtedness of FCX or of any other facts
which would prohibit the making of any payment of monies to or by
the Trustee in respect of the Securities or any Coupons, unless
and until the Trustee shall have received notice in writing
(which may be by telegram, telecopy or other similar writing) at
its Corporate Trust Office to that effect signed by an officer of
FCX, or by a holder or agent of a holder of Senior Indebtedness
of FCX who shall have been certified by FCX or otherwise
established to the reasonable satisfaction of the Trustee to be
such holder or agent, or by the trustee under any indenture
pursuant to which Senior Indebtedness of FCX shall be
outstanding, and, prior to the receipt of any such written
notice, the Trustee shall, subject to Sections 6.1 and 6.2, be
entitled to assume that no such facts exist; provided that if on
a date at least two Business Days prior to the date upon which by
the terms hereof any such monies shall become payable pursuant to
the FCX Guarantee for any purpose (including, without limitation,
the payment of the principal of or interest on any Security) the
Trustee shall not have received with respect to such monies the
notice provided for in this section, then, regardless of anything
herein to the contrary, the Trustee shall have full power and
authority to receive such monies and to apply the same to the
purpose for which they were received, and shall not be affected
by any notice to the contrary which may be received by it on or
after such prior date.
Regardless of anything to the contrary herein (but subject,
in the case of clause (a) of this paragraph, to the second
paragraph of Section 16.2), nothing shall prevent (a) any payment
by FCX or the Trustee to the Securityholders of amounts in
connection with a redemption of Securities if (i) notice of such
redemption has been given pursuant to Article Twelve prior to the
receipt by the Trustee of written notice as aforesaid, and (ii)
such notice of redemption is given not earlier than 60 days
before the Redemption Date, or (b) any payment by the Trustee to
the Securityholders of amounts deposited with it pursuant to
Section 10.1, provided, that, in the case of Section 10.1(B), the
applicable Securities are deemed to have been paid and
discharged, and in the case of Section 10.1(A), the Trustee shall
not have received, by at least two Business Days prior to the
date of execution of instruments acknowledging the satisfaction
of and discharge of this Indenture with respect to the applicable
Securities, the notice provided in the preceding paragraph.
Subject to Sections 6.1 and 6.2, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior Indebtedness
of FCX (or a trustee on behalf of such holder) to establish that
such notice has been given by a holder of Senior Indebtedness of
FCX or a trustee on behalf of any such holder. In the event that
the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of
Senior Indebtedness of FCX to participate in any payment or
distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Indebtedness of FCX held
by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if
such evidence is not furnished the Trustee may defer any payment
to such Person pending judicial determination as to the right of
such Person to receive such payment.
SECTION 16.6 Trustee's Relation to Senior Indebtedness. The
Trustee and any agent of FCX or the Trustee shall be entitled to
all the rights set forth in this Article with respect to any
Senior Indebtedness which may at any time be held by it in its
individual or any other capacity to the same extent as any other
holder of Senior Indebtedness of FCX and nothing in Section 6.13
or elsewhere in this Indenture shall deprive the Trustee or any
such agent of any of its rights as such holder. Nothing in this
Article shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 6.6.
With respect to the holders of Senior Indebtedness of FCX,
the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this
Article, and no implied covenants or obligations with respect to
the holders of Senior Indebtedness of FCX shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Senior Indebtedness
of FCX and, subject to the provisions of Sections 6.1 and 6.2,
the Trustee shall not be liable to any holder of Senior
Indebtedness of FCX if it shall in good faith pay over or deliver
to Holders of Securities, FCX or any other Person monies or
assets to which any holder of Senior Indebtedness of FCX shall be
entitled by virtue of this Article or otherwise.
SECTION 16.7 No Impairment of Subordination. No right of
any present or future holder of any Senior Indebtedness of FCX to
enforce subordination as herein provided shall at any time in any
way be prejudiced or impaired by any act or failure to act on the
part of FCX or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Issuer with the
terms, provisions and covenants of this Indenture, regardless of
any knowledge thereof which any such holder may have or otherwise
be charged with.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of
______________ _____, 1996.
FCX FINANCE COMPANY B.V.
By:_______________________________
Name:
Title:
FREEPORT-McMoRan Copper & Gold Inc.
By:_______________________________
Name:
Title:
[CORPORATE SEAL OF FCX]
Attest:
By:__________________________
Name:
Title:
________________________, as Trustee
By:_______________________________
Name:
Title:
[CORPORATE SEAL OF TRUSTEE]
Attest:
By:__________________________
Name:
Title:
STATE OF LOUISIANA
PARISH OF ORLEANS
On this the ____ day of _____________ 1996, personally came
___________________ to me personally known, who, being by me duly
sworn, did depose and say that he resides at ___________________;
that he is a __________________ of FCX Finance Company B.V., one
of the corporations described in and which executed the above
instrument; and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
___________________________
Notary Public
STATE OF LOUISIANA
PARISH OF ORLEANS
On this ____ day of ______________ 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 a ______________________ of Freeport-McMoRan Copper &
Gold Inc., one of the corporations described in and which
executed the above instrument; that he knows the corporate seal
of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the
board of Directors of said corporation, and that he signed his
name thereto by like authority.
[NOTARIAL SEAL]
______________________________
Notary Public
STATE OF NEW YORK
COUNTY OF NEW YORK
On this ____ day of _______________ 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 a _____________ of
________________, one of the corporations described in and which
executed the above instrument; that he knows the corporate seal
of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his
name thereto by like authority.
[NOTARIAL SEAL]
___________________________
Notary Public
CERTIFICATE OF DESIGNATIONS
OF
[CONVERTIBLE] [EXCHANGEABLE] PREFERRED STOCK, SERIES ___
(Par Value $0.10 Per Share)
OF
FREEPORT-McMoRan COPPER & GOLD INC.
Pursuant to Section 151(g) of the
General Corporation Law of the State of Delaware
(If convertible or exchangeable, then insert such provisions
below as are consistent with the terms of the security designated
in the applicable Prospectus Supplement.)
We, the undersigned, being a Senior Vice President and the
Secretary, respectively, of Freeport-McMoRan Copper & Gold Inc.
(hereinafter called the "corporation"), a corporation organized
and existing under and by virtue of the provisions of the General
Corporation Law of the State of Delaware,
DO HEREBY CERTIFY:
FIRST. The Certificate of Incorporation of the corporation
authorizes the issuance of shares of Preferred Stock, par value
$0.10 per share, in series, with variations, as may be determined
by the Board of Directors of the corporation prior to the issue
thereof, as to the designation of each particular series and as
to certain of the rights, preferences and limitation of shares of
each such series.
SECOND. The Board of Directors of the corporation, acting by
Unanimous Written Consent dated ____________, and a Special
Committee thereof, pursuant to authority specifically granted to
it by such Board of Directors, at a meeting duly called and held
on _____________, duly adopted the following resolutions
authorizing the creation and issuance of a series of Preferred
Stock to be known as "$______ [Convertible] [Exchangeable]
Preferred Stock."
RESOLVED, that the Board of Directors, pursuant to authority
vested in it by the provisions of the Restated Certificate of
Incorporation, as amended, of the corporation, hereby authorize
the issue of a series of Preferred Stock of the corporation and
hereby fixes the number, designation, preferences, rights and
limitations thereof in addition to those set forth in the
Restated Certificate of Incorporation as follows:
1. Designation. (a) ___________ shares of Preferred Stock of the
corporation are hereby constituted as a series of Preferred Stock
designated as "$____ [Convertible] [Exchangeable] Preferred
Stock" (hereinafter called "this Series"). Each share of this
Series shall be identical in all respect with the other shares of
this Series except as to the dates from and after which dividends
thereon shall be cumulative. The Board of Directors is
authorized to increase or decrease (but not below the number of
shares of this Series then outstanding) the number of shares of
this Series.
(b) Shares of this Series which have been redeemed [ converted
into _________] [exchanged into its Debentures (as hereinafter
defined)] or purchased by the corporation shall be cancelled, and
shall revert to authorized but unissued Preferred Stock
undesignated as to series, and may be reissued as a part of this
Series or may be reclassified and reissued as part of a new
series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors, all subject to the
conditions or restrictions on issuance set forth in any
resolution or resolutions adopted by the Board of Directors
providing for the issue of such series of Preferred Stock.
2. Dividends. (a) The holders of shares of this Series shall be
entitled to receive, but only out of funds legally available
therefor, cash dividends. Such dividends shall be paid when, as
and if declared by the Board of Directors on the first day of
___________, __________, _________ and __________ in each year
commencing __________________ (each such date being referred to
herein as a "Dividend Payment Date") to holders of record on the
record date determined by the Board of Directors in advance of
the payment of each particular dividend. Such dividends shall be
cumulative from the date of issue of the shares of this Series.
(b) So long as any shares of this Series shall be outstanding,
the corporation shall not, unless full cumulative dividends for
all past dividend periods shall have been paid or declared and set
apart for payment upon all outstanding shares of this series and
the shares of any other class or series of Preferred Stock, (i)
declare, pay or set apart any amounts for dividends on, or make
any other distribution in cash or other property in respect of,
the Common Stock or any other stock of the corporation, ranking
junior to this Series as to dividends or distribution of assets
upon liquidation, dissolution or winding up of the affairs of the
corporation (the Common Stock and any such other stock being
herein referred to as "Junior Stock"), other than a dividend
payable solely in Junior Stock, (ii) purchase, redeem or
otherwise acquire for value any shares of Junior Stock, directly
or indirectly, other than as a result of reclassification of
Junior Stock, or the exchange or conversion of one Junior Stock
for or into another Junior Stock, or other than through the use
of proceeds of a substantially contemporaneous sale of other
Junior Stock, or (iii) make any payment on account of, or set
aside money for, a sinking or other like fund for the purchase,
redemption or other acquisition for value of any shares of Junior
Stock.
(c) If the funds available for the payment of dividends are
insufficient to pay in full the dividends payable on all
outstanding shares of this Series and shares of any other series
of Preferred Stock, the total available funds to be paid in
partial dividends on the shares of such other series of Preferred
Stock and the shares of this Series shall be divided among this
Series and such other series of Preferred Stock in proportion to
the aggregate amounts of dividends accrued and unpaid with
respect to this Series and such other series of Preferred Stock.
Accruals of dividends shall not bear interest.
3. Dividend Rate. The Dividend Rate on the shares of this Series
for the period from the date of original issue thereof to and
including _______________, and for each Dividend Period
thereafter shall be $________ per annum. The term "Dividend
Period", as used herein, means, with respect to any Dividend
Payment Date, the period commencing on the day following the
immediately preceding Dividend Payment Date to and including such
Dividend Payment Date.
4. Redemption. (a) The shares of this Series shall not be
redeemable prior to _____________. Thereafter, the corporation,
at its option, may redeem the shares of this Series, in whole or
in part, at any time or from time to time, upon notice given as
hereinafter specified, at the following redemption prices per
share if redeemed during the twelve month period commencing on
_______________ of the year indicated:
Year Price
and at $_____ per share thereafter, plus, in each case, an amount
equal to all accrued and unpaid dividends on the shares being
redeemed to and including the date fixed for such redemption.
Notwithstanding any provision of this Section 4 to the contrary,
any accrued and unpaid dividends in respect of shares of this
Series to be redeemed shall be payable to the holder of record of
such shares, as determined on the relevant record date.
(b) Notice of redemption shall be mailed by the corporation
by first class mail, postage prepaid, not less than 15 nor more
than 60 days before the date fixed for redemption, to each
transfer agent for the shares of this Series to be redeemed and
to each holder of record of such shares addressed to such holder
at his address shown on the registry books of the corporation.
Such notice of redemption shall set forth the date fixed for
redemption, the number of shares of this Series to be redeemed
and, if less than all of the shares held by such holder are to be
redeemed, the number of shares to be redeemed from such holder,
the applicable redemption price and the place or places
(including a place in the Borough of Manhattan, The City of New
York) at which stockholders may obtain payment of such redemption
price plus accrued dividends upon the surrender of the
certificates representing their shares. Failure to mail such
notice, or any defect therein or in the mailing thereof, to any
particular holder shall not affect the validity of the proceeding
for the redemption of any shares so to be redeemed from any other
holder.
(c) If less than all the outstanding shares of this Series
are to be redeemed, the number of shares of this Series to be
redeemed an the method of effecting such redemption, whether by
lot or pro rata, shall be as determined by the Board of
Directors.
(d) At any time after a notice of redemption has been given
in the manner prescribed herein and prior to the date fixed for
redemption, the corporation may deposit in trust, with a bank or
trust company identified in the notice of redemption having
capital, surplus and undistributed profits aggregating at least
$50,000,000, an aggregate amount of funds sufficient for such
redemption (including dividends accrued on the shares of this
Series called for redemption to the date fixed for redemption)
for immediate payment in the appropriate amounts upon surrender
of certificates for such shares. Any interest accrued on such
funds shall be paid to the corporation from time to time. Such
deposit in trust shall be irrevocable, except that any funds
deposited by the corporation which shall not be required for the
redemption for which they were deposited because of the exercise
of rights of conversion subsequent to the date of deposit shall
be returned to the corporation forthwith, and any funds deposited
by the corporation which are unclaimed at the end of two years
from the date fixed for such redemption shall be paid over to the
corporation upon its request, and upon such repayment the holders
of the shares so called for redemption shall look only to the
corporation for payment of the appropriate amount.
(e) From and after the date of the deposit of trust funds
for the redemption of shares of this Series in accordance with
the provisions of Section 4(d) hereof or, if no such deposit is
made, from and after the date fixed for redemption (unless the
corporation shall default in making payment of the amount payable
upon such redemption), whether or not certificates for shares so
called for redemption have been surrendered by the holders
thereof as described below, dividends on the shares of this
Series so called for redemption shall cease to accrue, and such
shares shall be deemed to be no longer outstanding, and all
rights of the holders thereof as stockholders of the corporation
(except the right to receive from the corporation the amount
payable upon such redemption and, up to the close of business on
the date fixed for such redemption, the right to convert such
shares as set forth in Section 7 hereof) shall cease and
terminate. Upon surrender in accordance with the notice of
redemption of the certificates for any shares of this Series so
redeemed (properly endorsed or assigned for transfer if the Board
of Directors shall so require and the notice shall so state), the
holder thereof shall be entitled to receive payment of the
redemption price plus an amount equal to all accrued and unpaid
dividends as aforesaid. If less than all of the shares
represented by any such surrendered certificate are redeemed, the
corporation shall execute and deliver to the holder thereof, or
to his written order, a certificate or certificates representing
the unredeemed shares.
(f) In no event shall the corporation redeem less than all
the outstanding shares of this Series and shares of any other
series of Preferred Stock pursuant to this Section 4 unless full
cumulative dividends for all past dividend periods shall have
been paid or declared and set apart for payment upon all
outstanding shares of this Series and the shares of such other
series of Preferred Stock.
(g) In connection with any redemption of shares of this
Series, the corporation may enter into an agreement with one or
more investment bankers or other purchasers for the purchase of
the shares to be redeemed from the holders thereof and the
conversion of such purchased shares into shares of Common Stock
as provided in Section 7 hereof. Such agreement shall provide
that the amount to be paid by such purchasers to the holders of
the shares of this Series to be redeemed shall not be less than
the redemption price for such shares together with all accrued
and unpaid dividends thereon to and including the date fixed for
redemption and may provide further than such amount be deposited
in trust, on or before the close of business on the date fixed
for redemption, with a bank or trust company designated by the
corporation meeting the requirements set forth in Section 4(e)
hereof. Notwithstanding anything to the contrary contained in
this Section, the obligation of the corporation to pay the
redemption price of the shares of this Series to be redeemed,
together with accrued and unpaid dividends thereon to the date
fixed for redemption, shall be deemed to be satisfied and
discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, any shares of
this Series to be redeemed that have not been duly surrendered
for conversion by the holders thereof may, at the option of the
corporation, be deemed, to the fullest extent permitted by law,
acquired by such purchasers from such holders and
(notwithstanding anything to the contrary contained in this
Section 4(g) or in Section 7 hereof surrendered by such
purchasers for conversion, all as of immediately prior to the
close of business on the date fixed for redemption, subject to
payment of the above amount as aforesaid.
4. Voting Rights. (a) Except for the voting rights described
below and except as otherwise provided by law, the holders of
shares of this Series shall not be entitled to vote on any matter
or to receive notice of, or to participate in, any meeting of the
stockholders of the corporation. Each share of Preferred Stock
of this Series will be entitled to one vote on matters which
holders of such series are entitled to vote.
(b) Whenever dividends payable on shares or this Series
shall be in default in an aggregate amount equal to or exceeding
six full quarterly dividends on all shares of this Series at the
time outstanding, the number of directors then constituting the
Board of Directors of the corporation shall be increased by two,
and holders of shares of this Series shall, in addition to any
other voting rights, have the right, voting separately as a class
together with holders of all other series of stock of the Company
ranking on a parity with such series os Preferred Stock either as
to dividends or the distribution of assets upon liquidation,
dissolution or winding up and upon which like voting rights have
been conferred and are exercisable (such other series of stock
being herein referred to as "Other Voting Stock"), to elect such
two additional directors. In such case, the Board of Directors
will be increased by two directors, and the holders of Preferred
Stock of such series (either alone or with the holders of Other
Voting Stock) will have the exclusive right as members of such
class, as outlined above, to elect two directors at the next
annual meeting of stockholders. Whenever such right of the
holders of shares of this Series shall have vested, such right
may be exercised initially either at a special meeting of such
holders as provided in Section 5(c) hereof or at any annual
meeting of stockholders held for the purpose of electing
directors, and thereafter at such annual meetings. The right of
the holders of shares of this Series to vote together as a class
with holders of any Other Voting Stock shall continue until such
time as all dividends accrued on outstanding shares of this
Series to the Dividend Payment Date next preceding the date of
any such determination shall have been paid in full, or declared
and set apart in trust for payment, at which time the right of
the holders of shares of this Series so to vote shall terminate,
except as herein or by law expressly provided, subject to
revesting upon the occurrence of a subsequent default of the
character mentioned above.
(c) At any time when the right of the holders of shares of
this Series to elect directors as provided in Section 5(b) hereof
shall have vested, and if such right shall not already have been
initially exercised, a proper office of the corporation, upon the
written request of at least 10% of the aggregate number of shares
of this Series and shares of any Other Voting Stock at the time
outstanding, addressed to the Secretary of the corporation, shall
call a special meeting of the holders of shares of this Series
and of such Other Voting Stock for the purpose of electing
directors. Such meeting shall be held at the earliest
practicable date upon the same form of notice as is required for
annual meetings of stockholders at the place for the holding of
annual meetings of stockholders of the corporation (or such other
suitable place as is designated by such officer). If such
meeting shall not be called by a proper officer of the
corporation within 20 days after personal service of such written
request upon the Secretary of the corporation, or within 20 days
after mailing the same within the United States of America,
addressed to the Secretary of the corporation at its principal
office (such mailing to be evidenced by the registry receipt
issued by the postal authorities), then the holders of record of
at least 10% of the aggregate number of shares of this Series and
shares of any Other Voting Stock at the time outstanding may
designate in writing one or their number to call such a meeting
at the expense of the corporation, and such meeting may be called
by such person so designated upon the same form of notice as is
required for annual meetings of stockholders and shall be held at
the place for the holding of annual meetings of stockholders of
the corporation (or such other suitable place as is designated by
such person). Any holder or shares of this Series so designated
shall have access to the registry book of the corporation for the
purpose of causing a meeting of stockholders to be called
pursuant to this subsection (c). Notwithstanding anything to the
contrary contained in this subsection (c), no such special
meeting shall be called during the period within 90 days
immediately preceding the date fixed for the next annual meeting
of stockholders of the corporation.
(d) At any meeting held for the purpose of electing
directors at which holders of shares of this Series shall have
the right, voting together as a class with holders of shares of
any Other Voting Stock to elect directors as provided in Section
5(b) hereof, the presence, in person or by proxy, of the holders
of 33-1/3% of the aggregate number of shares of this Series and
shares of such Other Voting Stock at the time outstanding shall
be required and be sufficient to constitute a quorum of such
class for the election of either director pursuant to such
Section 5(b). At any such meeting or adjournment thereof, (i)
the absence of a quorum of the shares of this Series and shares
of such Other Voting Stock shall not prevent the election of the
directors to be elected otherwise than pursuant to Section 5(b)
hereof, and (ii) in the absence of a quorum, either of the shares
of this Series and shares of such Other Voting Stock or of any
other shares of stock of the corporation, or both, a majority of
the holders, present in person or by proxy, of the class or
classes of stock which lack a quorum shall have the power to
adjourn the meeting for the election of directors whom they are
entitled to elect, from time to time without notice other than
announcement at the meeting, until a quorum shall be present.
(e) During any period when the holders of shares of this
Series shall have the right to vote together as a class with the
holders of shares of any Other Voting Stock for directors as
provided in Section 5(b) hereof, (i) the directors so elected by
such holders shall continue in office until their successors
shall have been elected by such holders or until termination of
the rights of such holders to vote as a class for directors and
(ii) any vacancies in the Board of Directors shall be filled only
by a majority (even if that be only a single director) of the
remaining directors theretofore elected by the holders of the
class or classes of stock which elected the director whose office
shall have become vacant. Immediately upon termination of the
right of holders of this Series and any Other Voting Stock to
vote as a class for directors, (i) the term of office of the
directors so elected shall terminate, and (ii) the number of
directors shall be such number as may be provided for in the by-
laws of the corporation irrespective of any increase pursuant to
the provisions of Section 5(b) hereof.
(f) In addition to any other vote required by law, the
corporation shall not (i) create, authorize or issue any series
or class of Preferred Stock ranking prior, either as to payment
of dividends or distributions of assets upon liquidation,
dissolution or winding up, to this Series, or (ii) change the
preferences, rights or limitations with respect to this Series,
in each case, if such action would materially adversely affect
the interests of the holders thereof, without the affirmative
vote of the holders of a majority of the aggregate number of
shares of this Series at the time outstanding, voting as a
separate class; provided, that nothing herein contained shall
require such a class vote in connection with any increase in the
total number of authorized shares of Common Stock or the
creation, authorization or issuance of any Junior Stock or any
series of Preferred Stock ranking, as to dividends or
distribution of assets upon liquidation, dissolution or winding
up of the affairs of the corporation, on a parity with the shares
of this Series and provided, further, that no such vote of the
holders of shares of this Series shall be required if, at or
prior to the time when the actions described in clause (i) or
(ii) of this Section 5(f) shall become effective, provision is
made in accordance with Section 4 hereof for the redemption of
all shares of this Series at the time outstanding.
6. Preference upon Liquidation. In the event of any voluntary
or involuntary liquidation, dissolution or winding up of the
affairs of the corporation, after payment or provision for
payment of the debts and other liabilities of the corporation,
the holders of shares of this Series shall be entitled to
receive, out of the remaining net assets of the corporation, the
amount of $_______ in cash for each shares of this Series, plus
an amount equal to all dividends (whether or not earned or
declared) accrued and unpaid on each such share up to the date
fixed for distribution, before any distribution shall be made to
or set apart for the holders of any Junior Stock. If, after
payment or provision for payment of the debts and other
liabilities of the corporation, the remaining net assets of the
corporation are not sufficient to pay to the holders of shares of
this Series the full amount of their preference set forth above,
then the remaining net assets of the corporation shall be divided
among and paid to the holders of shares of this Series and
holders of shares of any stock of the corporation on a parity as
to dividends and distribution of assets upon liquidation,
dissolution or winding up of the affairs of the corporation
ratably per share in proportion to the full per share amounts to
which they respectively are entitled. For purposes of this
Section 6, a consolidation or merger of the corporation with one
or more other corporations or the sale of all or substantially
all of the assets of the corporation shall not be deemed to be a
voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the corporation.
Subject to the rights of the holders of shares of any series
or class of stock ranking prior to this Series and of the holders
of shares of any stock of the corporation on a parity as to
dividends and distribution of assets upon liquidation,
dissolution or winding up of the affairs of the corporation,
after payment shall have been made in full to the holders of this
Series as provided in this Section 6, the holders of any Junior
Stock shall, subject to the respective terms and provisions (if
any) applying thereto, be entitled to receive any and all assets
remaining to be paid or distributed, and shares of this Series
shall not be entitled to share therein.
7. Conversion Privilege. ( If applicable, insert conversion
privilege into shares of Preferred Stock or other securities or
rights of the corporation)
8. Exchange. (a) The shares of this Series are exchangeable
in whole, but not in part, at the option only of the corporation
on any Dividend Payment Date occurring on or after ____________
until and including ____________ for the corporation's
____% Convertible Subordinated Debentures Due described in the
corporation's Registration Statement on Form S-3 (Registration No.
____-_________ filed with the Securities and Exchange Commission
on _______________ (the "Debentures"); provided that on or prior
to the date of exchange the corporation shall have paid to or
declared and set aside for payment to the holders of outstanding
shares of this Series all accrued and unpaid dividends on
shares of this Series through the Exchange Date (as hereinafter
defined). The holders of shares of this Series will be entitled
to receive $_____ principal amount of Debentures in exchange for
each share of this Series held by them at the time of exchange.
The corporation will mail to each holder of record of the shares
of this Series written notice of its intention to exchange not
less than 30 nor more than 60 days prior to the date fixed for
the exchange (the "Exchange Date"). Each such notice shall state:
(1) the Exchange Date, (ii) the place or places where certificates
for shares of this Series are to be surrendered for exchange
into Debentures and (iii) that dividends on the shares of this
Series to be exchanged will cease to accrue on the Exchange Date.
Prior to giving notice of intention to exchange, the corporation
shall execute and deliver with the Trustee an in Indenture in
substantially the form approved by [the Section Committee of] the
Board of Directors on _______________ with such changes as may
be required by law or usage. The corporation will cause the
Debentures to be authenticated on the Dividend Payment Date on
which the exchange is effective, and will pay interest on the
Debenture at the rate and on the dates specified in such Indenture
from the Exchange Date.]
(b) The corporation will not give notice of its
intention to exchange under Section 8(a) hereof unless it shall
file at the place or places (including a place in the Borough of
Manhattan, The City of New York) maintained for such purpose an
opinion of counsel (who may be an employee of the corporation) to
the effect that (i) the Indenture has been duly authorized,
executed and delivered by the corporation, has been duly
qualified under the Trust Indenture Act of 1939 (or that such
qualification is not necessary) and constitutes a valid and
binding instrument enforceable against the corporation in
accordance with its terms (subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles, and subject to such other
qualifications as are then customarily contained in opinions of
counsel experienced in such matters), (ii) the Debentures have
been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered in
exchange for the shares of this Series, will constitute colloid
and binding obligations of the corporation entitled to the
benefits of the Indenture (subject as aforesaid), (iii) neither
the execution nor delivery of the Indenture or the Debentures nor
compliance with the terms, conditions or provisions of such
instruments will result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or agreement or instrument,
known to such counsel to which the corporation or any of its
Subsidiaries is a party or by which it or any of them is bound,
or any decree, judgment, order, rule or regulation, known to such
counsel, of any court or governmental agency or body having
jurisdiction over the corporation and such Subsidiaries or any of
their properties, and (iv) the Debentures have been duly
registered for such exchange with the Securities and Exchange
Commission under a registration statement that has become
effective under the Securities Act of 1933 (the "Act") or that
the exchange of the Debentures for the shares of this Series of
Preferred is exempt from registration under the Act.
(c) If notice has been mailed as aforesaid, from and
after the Exchange Date (unless the corporation shall default in
issuing Debentures in exchange for shares of this Series or in
making or providing for he payment accrued and unpaid dividends
on the outstanding shares of this Series to the Exchange Date)
dividends on the shares of this Series shall cease to accrued,
and such shares shall be deemed to be no longer outstanding, and
all rights of the holders thereof as stockholders of the
corporation shall cease and terminate. Upon surrender in
accordance with said notice of the certificates for shares of
this Series so exchanged (properly endorsed or assigned for
transfer if the Board of Directors shall so require and the
notice shall so state), such shares shall be exchanged by the
corporation into Debentures as aforesaid.
9. Notice of Certain Events. In case:
(a) the corporation shall declare a dividend ( or any
other distribution) payable to the holders of Common Stock
(otherwise than cash dividends paid out of the earned surplus of
the corporation and dividends payable in Common Stock); or
(b) the corporation shall authorize the granting to the
holders of Common Stock of rights to subscribe for or purchase
any shares of stock of any class or of any other rights or
warrants; or
(c) the corporation shall authorize any reclassification
or change of the Common Stock (other than a subdivision or
combination of its outstanding shares of Common Stock or a
change in par value, or from par value to no par value, or from
no par value to par value), or any consolidation or merger to
which the corporation is a party and for which approval of any
stockholders of the corporation is required, or the sale or
conveyance of all or substantially all the property or business
of the corporation; or
(d) there shall be proposed any voluntary or involuntary
dissolution, liquidation or winding-up of the corporation;
then, the corporation shall cause to be filed at the place or
places maintained for the purpose of conversion of shares of this
Series as provided in Section 7(b) hereof, and shall cause to be
mailed to each holder of shares of this Series, at his address as
it shall appear on the registry books of the corporation, as
promptly as possible but in any event at least 20 days before the
date hereinafter specified (or the earlier of the dates
hereinafter specified, in the event that more than one date is
specified), a notice stating the date on which (i) a record i
expected to be taken for the purpose of such dividend, expected
to be taken for the purpose of such dividend, distribution,
rights, or warrants, or if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled
to such dividend, distribution, rights, or warrants are to be
determined,or (ii) such reclassification, change, consolidation,
merger, sale, transfer, conveyance, dissolution, liquidation or
winding-up is expected to become effective and the date, if any
is to be fixed, as of which it is expected that holders of Common
Stock of record shall be entitled to exchange their shares of
common Stock for securities or other property deliverable upon
such reclassification, change, consolidation, merger, sale,
transfer, conveyance, dissolution, liquidation or winding-up.
10. Taxes. The corporation will pay any and all
documentary, stamp or similar taxes payable to the United States
of America or any political subdivision or taxing authority
thereof or therein in respect of the issue or delivery of (a)
certificates for shares of this Series on redemption of less than
all of the shares represented by any certificate for such shares
surrendered for redemption or (b) certificates for shares of
Common Stock on conversion of shares of this Series pursuant to
Section 7 hereof; provided, that the corporation shall not be
required to pay any tax which may be payable in respect of any
transfer involved in the issue or delivery of certificates for
shares of this Series of Common Stock, as the case may be, in a
name other than that of the holder of shares of this Series to be
redeemed or converted and no such issue or delivery shall be made
unless an until the person requesting such issue or delivery has
paid to the corporation the amount of any such tax or has
established, to the satisfaction of the corporation, that such
tax has been paid. The corporation extends no protection with
respect to any other taxes imposed in connection with such
redemption or conversion of shares of this Series.
11. No Other Rights. The shares of this Series shall
not have any relative, participating, option or other special
rights and powers other than as set forth herein.
IN WITNESS WHEREOF, said Freeport-McMoRan Copper & Gold Inc. has
caused its corporate seal to be hereunder affixed and this
Certificate of Designations to be signed by its Senior Vice
President and Secretary as of this ______________.
FREEPORT-McMoRan COPPER & GOLD INC.
By:
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
Name:
Title:
FRONT OF STOCK CERTIFICATE
CLASS A
NOT MORE COMMON STOCK
THAN 100,000 NOT MORE
SHARES THAN 100,000
NUMBER INCORPORATED UNDER THE LAWS [GRAPHIC OF GODDESS HERE] SHARES
FCX OF THE STATE OF DELAWARE SHARES
This Certificate is Transferable
in Melbourne, Australia and New York, New York SEE REVERSE
FOR CERTAIN
DEFINITIONS
Freeport-McMoRan Copper & Gold Inc.
This is to certify that CUSIP 35671D 10 5
is the owner of
Fully paid and non-assessable shares, of the par value of ten cents ($.10)
per share, of the Class A Common Stock of
[CORPORATE SEAL]
Freeport-McMoRan Copper & Gold Inc., transferable on the books of the
Corporation by the holder hereof in person or by duly authorized attorney
upon surrender of this certificate properly endorsed. This certificate and
the shares represented hereby are issued and shall be held subject to all
the provisions of the Certificate of Incorporation, as amended, copies of
which are on file with the Transfer Agent, to all of which the holder by
acceptance hereof assents.
This certificate is not valid until countersigned and registered by the
Transfer Agent and Registrar.
WITNESS, the seal of the Corporation and the signatures of its duly
authorized officers.
DATED
Countersigned and registered:
Mellon Securities Trust Company
(New York) Transfer Agent
and Registrar
BY
Michael C. Kilanowski, Jr. James R. Moffett
Authorized Signature Secretary Chairman of the Board
BACK OF STOCK CERTIFICATE
Freeport-McMoRan Copper & Gold Inc.
The Corporation will furnish without charge to each stockholder who so
requests a statement of the designations, preferences and relative,
participating, optional or other special rights of each class of stock of the
Corporation, or series thereof, and the qualifications, limitations or
restrictions of such preferences and/or rights. Such request must be made to
the office of the secretary of the Corporation.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
TEN ENT - as Tenants by the entireties ......................
JT TEN - as joint tenants with right of (Cust) (Minor)
survivorship and not as tenants under Uniform Gifts to
in common Minors Act............
(State)
Additional abbreviations may also be used though not in the above list
For value received, _______________ hereby sell, assign and transfer unto
Please Insert Social Security or Other
Identifying Number of Assignee
_______________________________________________________________________________
(Please Print or Typewrite Name and Address, including Zip Code, or Assignee)
_______________________________________________________________________________
_______________________________________________________________________________
_________________________________________________________________________shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint _________________________________________
Attorney to transfer the said stock on the books of the within named
Corporation with full power of substitution in the premises.
Dated __________________________________
______________________________________________________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the Certificate in every
particular, without alteration or enlargement or any change
whatever.
FRONT OF STOCK CERTIFICATE
CLASS B
COMMON STOCK
NUMBER INCORPORATED UNDER THE LAWS [GRAPHIC OF GODDESS HERE]
FCXB OF THE STATE OF DELAWARE SHARES
This Certificate is Transferable
in Melbourne, Australia and New York, New York SEE REVERSE
FOR CERTAIN
DEFINITIONS
Freeport-McMoRan Copper & Gold Inc.
This is to certify that CUSIP 35671D 85 7
is the owner of
Fully paid and non-assessable shares, of the par value of ten cents ($.10)
per share, of the Class B Common Stock of
[CORPORATE SEAL]
Freeport-McMoRan Copper & Gold Inc., transferable on the books of the
Corporation by the holder hereof in person or by duly authorized attorney
upon surrender of this certificate properly endorsed. This certificate and
the shares represented hereby are issued and shall be held subject to all
the provisions of the Certificate of Incorporation, as amended, copies of
which are on file with the Transfer Agent, to all of which the holder by
acceptance hereof assents.
This certificate is not valid until countersigned and registered by the
Transfer Agent and Registrar.
WITNESS, the seal of the Corporation and the signatures of its duly
authorized officers.
DATED
Countersigned and registered:
Mellon Securities Trust Company
(New York) Transfer Agent
BY and Registrar
Michael C. Kilanowski, Jr. James R. Moffett
Authorized Signature Secretary Chairman of the Board
BACK OF STOCK CERTIFICATE
Freeport-McMoRan Copper & Gold Inc.
The Corporation will furnish without charge to each stockholder who so
requests a statement of the designations, preferences and relative,
participating, optional or other special rights of each class of stock of the
Corporation, or series thereof, and the qualifications, limitations or
restrictions of such preferences and/or rights. Such request must be made to
the office of the secretary of the Corporation.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
TEN ENT - as Tenants by the entireties ......................
JT TEN - as joint tenants with right of (Cust) (Minor)
survivorship and not as tenants under Uniform Gifts to
in common Minors Act............
(State)
Additional abbreviations may also be used though not in the above list
For value received, _______________ hereby sell, assign and transfer unto
Please Insert Social Security or Other
Identifying Number of Assignee
_______________________________________________________________________________
(Please Print or Typewrite Name and Address, including Zip Code, or Assignee)
_______________________________________________________________________________
_______________________________________________________________________________
_________________________________________________________________________shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint _________________________________________
Attorney to transfer the said stock on the books of the within named
Corporation with full power of substitution in the premises.
Dated __________________________________
______________________________________________________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the Certificate in every
particular, without alteration or enlargement or any change
whatever.
Signature(s) Guaranteed:
__________________________________________________________________________
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant
to S.E.C. Rule 17Ad-15.
Exhibit 4.12
FREEPORT-McMoRan COPPER & GOLD INC.
and
_____________________________________
As Depositary
and
HOLDERS OF DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
Dated as of __________________,
<PAGE>
TABLE OF CONTENTS
Page
Parties 1
Recitals 1
ARTICLE I
DEFINITIONS
"Certificate of Designations" 1
"Certificate of Incorporation" 1
"Company" 1
"Corporate Office" 2
"Deposit Agreement" 2
"Depositary" 2
"Depositary Share" 2
"Depositary's Agent" 2
"New York office" 2
"Receipt" 2
"record holder" 2
"Registrar" 2
"Securities Act" 2
"Stock" 2
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.01 Form and Transfer of Receipts 3
SECTION 2.02 Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof 3
SECTION 2.03 Redemption, Exchange and Conversion of Stock 4
SECTION 2.04 Register of Transfer of Receipts 6
SECTION 2.05 Combination and Split-ups of Receipts 7
SECTION 2.06 Surrender of Receipts and Withdrawal of Stock 7
SECTION 2.07 Limitations on Execution and Delivery, Transfer,
Split-up, Combination, Surrender and Exchange of
Receipts and Withdrawal or Deposit of Stock 7
SECTION 2.08 Lost Receipts, etc 8
SECTION 2.09 Cancellation and Destruction of Surrendered
Receipts 8
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01 Filing Proofs, Certificates and Other Information9
SECTION 3.02 Payment of Taxes or Other Governmental Charges 9
SECTION 3.03 Withholding 9
SECTION 3.04 Representations and Warranties as to Stock 9
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01 Cash Distributions 10
SECTION 4.02 Distributions Other Than Cash 10
SECTION 4.03 Subscription Rights, Preferences or Privileges 10
SECTION 4.04 Notice of Dividends, Fixing of Record Date for
Holders of Receipts 11
SECTION 4.05 Voting Rights 12
SECTION 4.06 Changes Affecting Stock and Reclassification,
Recapitalization, etc 12
SECTION 4.07 Reports 12
SECTION 4.08 Lists of Receipt Holders 12
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01 Maintenance of Offices, Agencies, Transfer Books
by the Depositary; the Registrar 13
SECTION 5.02 Prevention or Delay in Performance by the
Depositary, the Depositary's Agents, the
Registrar or the Company 13
SECTION 5.03 Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company 14
SECTION 5.04 Resignation and Removal of the Depositary,
Appointment of Successor Depositary 15
SECTION 5.05 Corporate Notices and Reports 16
SECTION 5.06 Deposit of Stock by the Company 16
SECTION 5.07 Indemnification by the Company 16
SECTION 5.08 Fees, Charges and Expenses 17
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01 Amendment 17
SECTION 6.02 Termination 17
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 Counterparts 18
SECTION 7.02 Exclusive Benefits of Parties 18
SECTION 7.03 Invalidity of Provisions 18
SECTION 7.04 Notices 18
SECTION 7.05 Depositary's Agents 19
SECTION 7.06 Holders of Receipts Are Parties 19
SECTION 7.07 Governing Law 19
SECTION 7.08 Headings 19
TESTIMONIUM 20
SIGNATURES 20
EXHIBIT A 21
<PAGE>
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of _________________ among
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation,
_____________________ , a _____________banking corporation, as
Depositary, and all holders from time to time of Receipts issued
hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide as hereinafter
set forth in this Deposit Agreement, for the deposit of shares of
the Stock with the Depositary, as agent for the beneficial owners
of the Stock, for the purposes set forth in this Deposit Agreement
and for the issuance hereunder of the Receipts evidencing
Depositary Shares representing an interest in the Stock so
deposited; and
WHEREAS, the Receipts are to be substantially in the
form annexed as Exhibit A to this Deposit Agreement, with
appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement.
NOW, THEREFORE, in consideration of the premises
contained herein, it is agreed by and among the parties hereto as
follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective
terms (in the singular and plural forms of such terms) used in
this Deposit Agreement and the Receipts:
"Certificate of Designations" shall mean the Certificate
of Designations establishing and setting forth the rights,
preferences, privileges and limitations of the Stock.
"Certificate of Incorporation" shall mean the
Certificate of Incorporation, as amended and restated from time to
time, of the Company.
"Company" shall mean Freeport McMoRan Copper & Gold
Inc., a Delaware corporation, and its successors.
"Corporate Office" shall mean the office of the
Depositary in ________________. _______________ at which at any
particular time its business in respect of matters governed by
this Deposit Agreement shall be administered, which at the date of
this Deposit Agreement is located at ______________________.
"Deposit Agreement" shall mean this agreement, as the
same may be amended, modified or supplemented from time to time.
"Depositary" shall _________________, as Depositary
hereunder, and any successor as Depositary hereunder.
"Depositary Share" shall mean the rights evidenced by
the Receipts executed and delivered hereunder, including the
interests in Stock granted to holders of Receipts pursuant to the
terms and conditions of the Deposit Agreement. Each Depositary
Share shall represent an interest in of a share of Stock deposited
with the Depositary hereunder and the same proportionate interest
in any and all other property received by the Depositary in
respect of such share of Stock and held under this Deposit
Agreement. Subject to the terms of this Deposit Agreement, each
record holder of a Receipt evidencing a Depositary Share or Shares
is entitled, proportionately, to all the rights, preferences and
privileges of the Stock represented by such Depositary Share or
Shares, including the dividend, conversion, exchange, voting and
liquidation rights contained in the Certificate of Designations,
and to the benefits of all obligations and duties of the Company
in respect of the Stock under the Certificate of Designations and
the Certificate of Incorporation.
"Depositary's Agent" shall mean an agent appointed by
the Depositary as provided, and for the purposes specified, in
Section 7.05.
"New York Office" shall mean the office maintained by
the Depositary in the Borough of Manhattan, The City of New York,
which at the date of this Deposit Agreement is located at
___________________________.
"Receipt" shall mean a Depositary Receipt executed and
delivered hereunder, in substantially the form of Exhibit A
hereto, evidencing Depositary Share or Shares, as the same may be
amended from time to time in accordance with the provisions
hereof.
"record holder" or "holder" as applied to a Receipt
shall mean the person in whose name a Receipt is registered on the
books maintained by or on behalf of the Depositary for such
purpose.
"Registrar" shall mean any bank or trust company
appointed to register ownership and transfers of Receipts as
herein provided.
"Securities Act" shall mean the Securities Act of 1933,
as amended.
"Stock" shall mean shares of the Company's [ ].
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER,
REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts. Receipts
shall be engraved or printed or lithographed on steel-engraved
borders and shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided.
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized officer of the Depositary;
provided, however, that such signature may be a facsimile if a
Registrar (other than the Depositary) shall have countersigned the
Receipts by manual signature of a duly authorized officer of the
Registrar. No Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed as provided in the preceding
sentence. The Depositary shall record on its books each Receipt
executed as provided above and delivered as hereinafter provided.
Receipts bearing the facsimile signature of anyone who was at any
time a duly authorized officer of the Depositary shall bind the
Depositary, notwithstanding that such officer has ceased to hold
such office prior to the delivery of such Receipts.
Receipts may be issued in denominations of any number of
whole Depositary Shares. All Receipts shall be dated the date of
their execution.
Receipts may be endorsed with or have incorporated in
the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Deposit Agreement as may
be required by the Depositary or required to comply with any
applicable law or regulation or with the rules and regulations of
any securities exchange upon which the Stock or the Depositary
Shares may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject by reason of the date of
issuance of the Stock or otherwise.
Title to any Receipt (and to the Depositary Shares
evidenced by such Receipt) that is properly endorsed or
accompanied by a properly executed instrument of transfer shall be
transferable by delivery with the same effect as in the case of
investment securities in general; provided, however, that the
Depositary may, notwithstanding any notice to the contrary, treat
the record holder thereof at such time as the absolute owner
thereof for the purpose of determining the person entitled to
distributions of dividends or other distributions or to any notice
provided for in this Deposit Agreement and for all other purposes.
SECTION 2.02. Deposit of Stock; Execution and Delivery
of Receipts in Respect Thereof. Subject to the terms and
conditions of this Deposit Agreement, the Company or any holder of
Stock may deposit such Stock under this Deposit Agreement by
delivery to the Depositary of a certificate or certificates for
the Stock to be deposited, properly endorsed or accompanied, if
required by the Depositary, by a properly executed instrument of
transfer in form satisfactory to the Depositary, together with (i)
all such certifications as may be required by the Depositary in
accordance with the provisions of this Deposit Agreement and (ii)
a written order of the Company or such holder, as the case may be,
directing the Depositary to execute and deliver to or upon the
written order of the person or persons stated in such order a
Receipt or Receipts for the number of Depositary Shares
representing such deposited Stock.
Upon receipt by the Depositary of a certificate or
certificates for Stock to be deposited hereunder, together with
the other documents specified above, the Depositary shall, as soon
as transfer and registration can be accomplished, present such
certificate or certificates to the registrar and transfer agent of
the Stock for transfer and registration in the name of the
Depositary or its nominee of the Stock being deposited. Deposited
Stock shall be held by the Depositary in an account to be
established by the Depositary at the corporate office.
Upon receipt by the Depositary of a certificate or
certificates for Stock to be deposited hereunder, together with
the other documents specified above, the Depositary, subject to
the terms and conditions of this Deposit Agreement, shall execute
and deliver, to or upon the order of the person or persons named
in the written order delivered to the Depositary referred to in
the first paragraph of this Section 2.02, a Receipt or Receipts
for the number of whole Depositary Shares representing the Stock
so deposited and registered in such name or names as may be
requested by such person or persons. The Depositary shall execute
and deliver such Receipt or Receipts at the New York Office,
except that, at the request, risk and expense of any person
requesting such delivery and for the account of such person, such
delivery may be made at such other place as may be designated by
such person. In each case, delivery will be made only upon
payment by such person to the Depositary of all taxes and other
governmental charges and any fees payable in connection with such
deposit and the transfer of the deposited Stock.
The company shall deliver to the Depositary from time to
time such quantities of Receipts as the Depositary may request to
enable the Depositary to perform its obligations under this
Deposit Agreement.
SECTION 2.03. Redemption, Exchange and Conversion of
Stock. Whenever the Company shall elect to redeem or exchange or
be required to convert shares of Stock in accordance with the
Certificate of Designations, it shall (unless otherwise agreed in
writing with the Depositary) give the Depositary in its capacity
as Depositary not less than 5 business days' prior notice of the
proposed date of the mailing of a notice of redemption, exchange
or conversion of Stock and the simultaneous redemption, exchange
or conversion of the Depositary Shares representing the Stock to
be redeemed, exchanged or converted and of the number of such
shares of Stock held by the Depositary to be redeemed, exchanged
or converted. The Depositary shall, as directed by the Company in
writing, mail, first class postage prepaid, notice of the
redemption, exchange or conversion of Stock and the proposed
simultaneous redemption, exchange or conversion of the Depositary
Shares representing the Stock to be redeemed, exchanged or
converted, not less than 15 and not more than 60 days prior to the
date fixed for redemption, exchange or conversion of such Stock
and Depositary Shares, to the record holders of the Receipts
evidencing the Depositary Shares to be so redeemed, exchanged or
converted, at the addresses of such holders as the same appear on
the records of the Depositary; provided, that if the effectiveness
of a Merger or consolidation (as defined in the Certificate of
Designations) makes it impracticable to provide at least 15 days'
notice, the Depositary shall provide such notice as soon as
practicable prior to such effectiveness. Any such notice shall
also be published in the same manner as notices of redemption,
exchange or conversion of Stock are required to be published
pursuant to Section _____ of the Certificate of Designations.
Notwithstanding the foregoing, neither failure to mail or publish
any such notice to one or more such holders nor any defect in any
notice shall affect the sufficiency of the proceedings for
redemption, exchange or conversion. The Company shall provide the
Depositary with such notice, and each such notice shall state: the
redemption, exchange or conversion date; the number of Depositary
Shares to be redeemed, exchanged or converted; if fewer than all
the Depositary Shares held by any holder are to be redeemed or
exchanged, the number of such Depositary Shares held by such
holder to be so redeemed or exchanged; in the case of a call for
redemption, the call price payable upon redemption (and the form
of consideration, whether cash, securities or other consideration,
on which the redemption call Price will be paid), the place or
places where Receipts evidencing Depositary Shares to be redeemed,
exchanged or converted are to be surrendered for redemption,
exchange or conversion; whether the Company is depositing with a
bank or trust company on or before the redemption, exchange or
conversion date, the cash payable by the Company and the proposed
date of such deposit; the amount of accrued and unpaid dividends
payable per share of Stock to be redeemed, exchanged or converted
to and including such redemption, exchange or conversion date, as
the case may be, and that dividends in respect of the Stock
represented by the Depositary Shares to be redeemed, exchange or
converted will cease to accrue on such redemption, exchange or
conversion date (unless the Company shall default in delivering
cash at the time and place specified in such notice). On the date
of any such redemption, exchange or conversion, the Depositary
shall surrender the certificate or certificates held by the
Depositary evidencing the number of shares of Stock to be
redeemed, exchanged or converted in the manner specified in the
notice of redemption, exchange or conversion of Stock provided by
the Company pursuant to Section ____ of the Certificate of
Designations. The Depositary shall, thereafter, redeem, exchange
or convert the number of Depositary Shares representing such
redeemed, exchanged or converted Stock upon the surrender of
Receipts evidencing such Depositary Shares in the manner provided
in the notice sent to record holders of Receipts. In case fewer
than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed shall be selected by the
Depositary by lot or on a pro rata basis at the direction of the
Company.
Notice having been mailed and published by the
Depositary as aforesaid, from and after the redemption, exchange
or conversion date (unless the Company shall have failed to
redeem, exchange or convert the shares of Stock to be redeemed,
exchanged or converted by it upon the surrender of the certificate
or certificates therefor by the Depositary as described in the
preceding paragraph), the Depositary Shares called for redemption
or exchange or subject to conversion shall be deemed no longer to
be outstanding and all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the
cash, securities or Form of consideration payable upon redemption,
exchange or conversion upon surrender of such Receipts) shall, to
the extent of such Depositary Shares, cease and terminate. Upon
surrender in accordance with said notice of the Receipts
evidencing such Depositary Shares (properly endorsed or assigned
for transfer, if the Depositary shall so require), such Depositary
Shares shall be converted into or redeemed or exchanged for shares
of Stock at a rate equal to ______ of the number of shares of
Stock delivered, and The holders thereof shall be entitled to
____________of the cash payable, in respect of the shares of Stock
pursuant to the Certificate of Designation. The foregoing shall be
subject further to the terms and conditions of the Certificate of
Designations.
If fewer than all of the Depositary Shares evidenced by
a Receipt are called for redemption, the Depositary will deliver
to the holder of such Receipt upon its surrender to the
Depositary, together with the Redemption Price (whether to be paid
in the form of cash, shares of Stock or other form or forms of
consideration) and all accrued and unpaid dividends to and
including the date fixed for redemption payable in respect of the
Depositary shares called for redemption, a new Receipt evidencing
the Depositary Shares evidenced by such prior Receipt and not
called for redemption.
To the extent that Depositary Shares are converted into
shares of Stock and all of such shares of Stock cannot be
distributed to the record holders of Receipts converted or called
for redemption without creating fractional interests in such
shares, the Company may distribute, or cause to be distributed,
cash to such holders in lieu of delivery of such fractional shares
or, if the Company elects not to make or cause to be made such a
distribution, the Depositary may, with the consent of the Company,
adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the sale (at
public or private sale) of such shares of Stock at such place or
places and upon such terms as it may deem proper, and the net
proceeds of any such sale shall, subject to Section 3.02, be
distributed or made available for distribution to such record
holders that would otherwise receive fractional interests in such
shares of Stock.
The Depositary shall not be required (a) to issue,
transfer or exchange any Receipts for a period beginning at the
opening of business 15 days next preceding any selection of
Depositary Shares and Stock to be redeemed and ending at the close
of business on the day of the mailing of notice of redemption of
Depositary Shares or (b) to transfer or exchange for another
Receipt any Receipt evidencing Depositary Shares called or being
called for redemption, in whole or in part, or subject to
conversion except as provided in the second preceding paragraph of
this Section 2.03.
SECTION 2.04. Register of Transfer of Receipts. Subject
to the terms and conditions of this Deposit Agreement, the
Depositary shall register on its books from time to time transfers
of Receipts upon any surrender thereof at the Corporate Office,
the New York Office or such other office as the Depositary may
designate for such purpose, by the record holder in person or by a
duly authorized attorney, properly endorsed or accompanied by a
properly executed instrument of transfer, together with evidence
of the payment of any transfer taxes as may be required by law.
Upon such surrender, the Depositary shall execute a new Receipt or
Receipts and deliver the same to or upon the order of the person
entitled thereto evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts
surrendered.
SECTION 2.05. Combination and Split-ups of Receipts.
Upon surrender of a Receipt or Receipts at the Corporate Office,
the New York Office or such other office as the Depositary may
designate for the purpose of effecting a split-up or combination
of Receipts, subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt
or Receipts in the authorized denominations requested evidencing
the same aggregate number of Depositary Shares evidenced by the
Receipt or Receipts surrendered; provided, however, that the
Depositary shall not issue any Receipt evidencing a fractional
Depositary Share.
SECTION 2.06. Surrender of Receipts and Withdrawal of
Stock. Any holder of a Receipt or Receipts may withdraw any or
all of the Stock (but only in whole shares of Stock) represented
by the Depositary Shares evidenced by such Receipts and all money
and other property, if any, represented by such Depositary Shares
by surrendering such Receipt or Receipts at the Corporate Office,
the New York Office or at such other office as the Depositary may
designate for such withdrawals. After such surrender, without
unreasonable delay, the Depositary shall deliver to such holder,
or to the person or persons designated by such holder as
hereinafter provided, the whole number of shares of Stock and all
such money and other property, if any, represented by the
Depositary Shares evidenced by the Receipt or Receipts so
surrendered for withdrawal. If the Receipt or Receipts delivered
by the holder to the Depositary in connection with such withdrawal
shall evidence a number of Depositary Shares in excess of the
number of whole Depositary Shares representing the whole number of
shares of Stock to be withdrawn, the Depositary shall at the same
time, in addition to such whole number of shares of Stock and such
money and other property, if any, to be withdrawn, deliver to such
holder, or (subject to Section 2.04) upon his order, a new Receipt
or Receipts evidencing such excess number of whole Depositary
Shares. Delivery of the Stock and such money and other property
being withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may
deem appropriate, which, if required by the Depositary, shall be
properly endorsed or accompanied by proper instruments of
transfer.
If the Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than
the record holder of the Receipt or Receipts being surrendered for
withdrawal of Stock, such holder shall execute and deliver to the
Depositary a written order so directing the Depositary and the
Depositary may require that the Receipt or Receipts surrendered by
such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument
of transfer in blank.
The Depositary shall deliver the Stock and the money and
other property, if any, represented by the Depositary Shares
evidenced by Receipts surrendered for withdrawal, without
unreasonable delay, at the office at which such Receipts were
surrendered, except that, at the request, risk and expense of the
holder surrendering such Receipt or Receipts and for the account
of the holder thereof such delivery may be made, without
unreasonable delay, ;t such other place as may be designated by
such holder.
SECTION 2.07. Limitations on Execution and Delivery,
Transfer, Split-up, Combination, Surrender and Exchange of
Receipts and Withdrawal or Deposit of Stock. As a condition
precedent to the execution and delivery, registration of transfer,
split-up, combination, surrender or exchange of any Receipt, the
delivery of any distribution thereon or the withdrawal or deposit
of Stock, the Depositary, any of the Depositary's Agents or the
Company may require any or all of the following: (i) payment to it
of a sum sufficient for the payment (or, in the event that the
Depositary or the Company shall have made such payment, the
reimbursement to it) of any tax or other governmental charge with
respect thereto (including any such tax or charge with respect to
the Stock being deposited or withdrawn or with respect to the
Stock or other securities or property of the Company being issued
upon conversion or redemption); (ii) production of proof
satisfactory to it as to the identity and genuineness of any
signature; and (iii) compliance with such reasonable regulations,
if any, as the Depositary or the Company may establish not
inconsistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of
Receipts against Stock or the registration of transfer, split-up,
combination, surrender or exchange of outstanding Receipts and the
withdrawal of deposited Stock may be suspended (i) during any
period when the register of stockholders of the Company is closed,
(ii) if any such action is deemed necessary or advisable by the
Depositary, any of the Depositary's Agents or the Company at any
time or from time to time because of any requirement of law or of
any government or governmental body or commission, or under any
provision of this Deposit Agreement, or (iii) with the approval of
the Company, for any other reason. Without limitation of the
foregoing, the Depositary shall not knowingly accept for deposit
under this Deposit Agreement any shares of Stock that are required
to be registered under the Securities Act unless a registration
statement under the Securities Act is in effect as to such shares
of Stock.
SECTION 2.08. Lost Receipts, etc. In case any Receipt
shall be mutilated or destroyed or lost or stolen, the Depositary
shall execute and deliver a Receipt of like form and tenor in
exchange and substitution for such mutilated Receipt or in lieu of
and in substitution for such destroyed, lost or stolen Receipt
unless the Depositary has notice that such Receipt has been
acquired by a bona fide purchaser; provided, however, that the
holder thereof provides the Depositary with (i) evidence
satisfactory to the Depositary of such destruction, loss or theft
of such Receipt, of the authenticity thereof and of his ownership
thereof, (ii) reasonable indemnification satisfactory to the
Depositary or the payment of any charges incurred by the
Depositary in obtaining insurance in lieu of such indemnification
and (iii) payment of any expense (including fees, charges and
expenses of the Depositary) in connection with such execution and
delivery.
SECTION 2.09. Cancellation and Destruction of
Surrendered Receipts. All Receipts surrendered to the Depositary
or any Depositary's Agent shall be cancelled by the Depositary.
Except as prohibited by applicable law or regulation, the
Depositary is authorized to destroy such Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other
Information. Any person presenting Stock for deposit or any
holder of a Receipt may be required from time to time to file such
proof of residence or other information, to execute such
certificates and to make such representations and warranties as
the Depositary or the Company may reasonably deem necessary or
proper. The Depositary or the Company may withhold or delay the
delivery of any Receipt, the registration of transfer, redemption,
conversion or exchange of any Receipt, the withdrawal of the Stock
represented by the Depositary Shares evidenced by any Receipt or
the distribution of any dividend or other distribution until such
proof or other information is filed, such certificates are
executed or such representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental
Charges. If any tax or other governmental charge shall become
payable by or on behalf of the Depositary with respect to (i) any
Receipt, (ii) the Depositary Shares evidenced by such Receipt,
(iii) the Stock (or fractional interest therein) or other property
represented by such Depositary Shares, or (iv) any transaction
referred to in Section 4.06, such tax (including transfer,
issuance or acquisition taxes, if any) or governmental charge
shall be payable by the holder of such Receipt, who shall pay the
amount thereof to the Depositary. Until such payment is made,
registration of transfer of any Receipt or any split-up or
combination thereof or any withdrawal of the Stock or money or
other property, if any, represented by the Depositary Shares
evidenced by such Receipt may be refused, any dividend or other
distribution may be withheld and any part or all of the Stock or
other property represented by the Depositary Shares evidenced by
such Receipt may be sold for the account of the holder thereof
(after attempting by reasonable means to notify such holder prior
to such sale). Any dividend or other distribution so withheld and
the proceeds of any such sale may be applied to any payment of
such tax or other governmental charge, the holder of such Receipt
remaining liable for any deficiency.
SECTION 3.03. Withholding. The Depositary shall act as
the tax withholding agent for any payments, distributions and
exchanges made with respect to the Depositary Shares and Receipts,
and the Stock represented thereby (collectively, the
"Securities"). The Depositary shall be responsible with respect
to the Securities for the timely (i) collection and deposit of any
required withholding or backup withholding tax, and (ii) filing of
any information returns or other documents with federal (and other
applicable) taxing authorities.
SECTION 3.04. Representations and Warranties as to
Stock. In the case of the initial deposit of the Stock, the
Company and, in the case of subsequent deposits thereof, each
person so depositing Stock under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Stock and each
certificate therefor are valid and that the person making such
deposit is duly authorized to do so. Such representations and
warranties shall survive the deposit of the Stock and the issuance
of Receipts therefor.
ARTICLE IV
THE STOCK, NOTICES
SECTION 4.01. Cash Distributions. Whenever the
Depositary shall receive any cash dividend or other cash
distribution on the Stock, the Depositary shall, subject to
Section 3.02, distribute to record holders of Receipts on the
record date fixed pursuant to Section 4.04 such amounts of such
sum as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts
held by such holders; provided, however, that in case the Company
or the Depositary shall be required by law to withhold and does
withhold from any cash dividend or other cash distribution in
respect of the Stock an amount on account of taxes, the amount
made available for distribution or distributed in respect of
Depositary Shares shall be reduced accordingly. The Depositary
shall distribute or make available for distribution, as the case
may be, only such amount, however, as can be distributed without
attributing to any owner of Depositary Shares a fraction of one
cent and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be
added to and be treated as part of the next sum received by the
Depositary for distribution to record holders of Receipts then
outstanding.
SECTION 4.02. Distributions Other Than Cash. Whenever the
Depositary shall receive any distribution other than cash, rights,
preferences or privileges upon the Stock, the Depositary shall,
subject to Section 3.02, distribute to record holders of Receipts
on the record date fixed pursuant to Section 4.04 such amounts of
the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such holders, in any
manner that the Depositary and the Company may deem equitable and
practicable for accomplishing such distribution. If, in the
opinion of the Company after consultation with the Depositary,
such distribution cannot be made proportionately among such record
holders, or if for any other reason (including any tax withholding
or securities law requirement), the Depositary deems, after
consultation with the Company, such distribution not to be
feasible, the Depositary may, with the approval of the Company
which approval shall not be unreasonably withheld, adopt such
method as it deems equitable and practicable for the purpose of
effecting such distribution, including the sale (at public or
private sale) of the securities or property thus received, or any
part thereof, at such place or places and upon such terms as it
may deem proper. The net proceeds of any such sale shall, subject
to Section 3.02, be distributed or made available for
distribution, as the case may be, by the Depositary to record
holders of Receipts as provided by Section 4.01 in the case of a
distribution received in cash.
SECTION 4.03. Subscription Rights, Preferences or
Privileges. If the Company shall at any time offer or cause to be
offered to the persons in whose names Stock is registered on the
books of the Company any rights, preferences or privileges to
subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights,
preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts in
such manner as the company shall instruct (including by the issue
to such record holders of warrants representing such rights,
preferences or privileges); provided, however, that (a) if at the
time of issue or offer of any such rights, preferences or
privileges the Company determines and instructs the Depositary
that it is not lawful or feasible to make such rights, preferences
or privileges available to some or all holders of Receipts (by the
issue of warrants or otherwise) or (b) if and to the extent
instructed by holders of Receipts who do not desire to exercise
such rights, preferences or privileges, the Depositary shall then,
in each case, and if applicable laws or the terms of such rights,
preferences or privileges so permit, sell such rights, preferences
or privileges of such holders at public or private sale, at such
place or places and upon such terms as it may deem proper. The
net proceeds of any such sale shall be distributed by the
Depositary to the record holders of Receipts entitled thereto as
provided by Section 4.01 in the case of a distribution received in
cash.
If registration under the Securities Act of the
securities to which any rights, preferences or privileges relate
is required in order for holders of Receipts to be offered or sold
such securities, the Company shall promptly file a registration
statement pursuant to the Securities Act with respect to such
rights, preferences or privileges and securities and use its best
efforts and take all steps available to it to cause such
registration statement to become effective sufficiently in advance
of the expiration of such rights, preferences or privileges to
enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to
the holders of Receipts any right, preference or privilege to
subscribe for or to purchase any securities unless and until such
registration statement shall have become effective or unless the
offering and sale of such securities to such holders are exempt
from registration under the provisions of the Securities Act.
If any other action under the law of any jurisdiction or
any governmental or administrative authorization, consent or
permit is required in order for such rights, preferences or
privileges to be made available to holders of Receipts, the
Company agrees with the Depositary that the Company will use its
reasonable best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the
expiration of such rights, preferences or privileges to enable
such holders to exercise such rights, preferences or privileges.
SECTION 4.04. Notice of Dividends, Fixing of Record Date
for Holders of Receipts. Whenever (i) any cash dividend or other
cash distribution shall become payable, or any distribution other
than cash shall be made, or any rights, preferences or privileges
shall at any time be offered, with respect to the Stock, or (ii)
the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote or of which holders of Stock
are entitled to notice or of the mandatory conversion of, or any
election on the part of the Company to call for the redemption or
exchange of, any shares of Stock, the Depositary shall in each
such instance fix a record date (which shall be the same date as
the record date fixed by the Company with respect to the Stock)
for the determination of the holders of Receipts (x) who shall be
entitled to receive such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale thereof,
or (y) who shall be entitled to give instructions for the exercise
of voting rights at any such meeting or to receive notice of such
meeting or of such conversion, exchange or redemption.
SECTION 4.05. Voting Rights. Upon receipt of notice of
any meeting at which the holders of Stock are entitled to vote,
the Depositary shall, as soon as practicable thereafter, mail to
the record holders of Receipts a notice, which shall be provided
by the Company and which shall contain (i) such information as is
contained in such notice of meeting, (ii) a statement that the
holders of Receipts at the close of business on a specified record
date fixed pursuant to Section 4.04 will be entitled, subject to
any applicable provision of law, the Certificate of Incorporation
or the Certificate of Designations, to instruct the Depositary as
to the exercise of the voting rights pertaining to the Stock
represented by their respective Depositary Shares and (iii) a
brief statement as to the manner in which such instructions may be
given. Upon the written request of a holder of a Receipt on such
record date, the Depositary shall endeavor insofar as practicable
to vote or cause to be voted the Stock represented by the
Depositary Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. The Company hereby
agrees to take all reasonable action that may be deemed necessary
by the Depositary in order to enable the Depositary to vote such
Stock or cause such Stock to be voted. In the absence of specific
instructions from the holder of a Receipt, the Depositary will
abstain from voting to the extent of the Stock represented by the
Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Stock and Reclassification,
Recapitalize, etc. Upon any split-up, consolidation or any other
reclassification of Stock, or upon any recapitalization,
reorganization, merger, amalgamation or consolidation affecting
the Company or to which it is a party or sale of all or
substantially all of the Company's assets, the Depositary shall
treat any shares of stock or other securities or property
(including cash) that shall be received by the Depositary in
exchange for or upon conversion of or in respect of the Stock as
new deposited property under this Deposit Agreement, and Receipts
then outstanding shall thenceforth represent the proportionate
interests of holders thereof in the new deposited property so
received in exchange for or upon conversion or in respect of such
Stock. In any such case the Depositary may, in its discretion,
with the approval of the Company, execute and deliver additional
Receipts, or may call for the surrender of all outstanding
Receipts to be exchanged for new Receipts specifically describing
such new deposited property.
SECTION 4.07. Reports. The Company or, at the option
of the Company, the Depositary shall forward to the holders of
Receipts any reports and communications received from the Company
that are received by the Depositary as the holder of Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon
request from time to time by the Company, the Depositary shall
furnish to it a list, as of a recent date, of the names, addresses
and holdings of Depositary Shares of all persons in whose names
Receipts are registered on the books of the Depositary. At the
expense of the Company, the Company shall have the right to
inspect transfer and registration records of the Depositary, any
Depositary's Agent or the Registrar, take copies thereof and
require the Depositary, any Depositary's Agent or the Registrar to
supply copies of such portions of such records as the Company may
request.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies,
Transfer Books by the Depositary; the Registrar. Upon execution
of this Deposit Agreement in accordance with its terms, the
Depositary shall maintain (i) at the New York Office facilities
for the execution and delivery, registration, registration of
transfer, surrender and exchange, split-up, combination,
redemption, exchange and conversion of Receipts and deposit and
withdrawal of Stock and (ii) at the Corporate Office and at the
offices of the Depositary's Agents, if any, facilities for the
delivery, registration, registration of transfer, surrender and
exchange, split-up, combination, conversion, exchange and
redemption of Receipts and deposit and withdrawal of Stock, all in
accordance with the provisions of this Deposit Agreement.
The Depositary, acting as transfer agent and Registrar,
shall keep books at the Corporate Office for the registration and
transfer of Receipts, which books at all reasonable times shall be
open for inspection by the record holders of Receipts; provided
that any such holder requesting to exercise such right shall
certify to the Depositary that such inspection shall be for a
proper purpose reasonably related to such person's interest as an
owner of Depositary Shares. The Depositary shall consult with
the Company upon receipt of any request for inspection. The
Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of
its duties hereunder.
If the Receipts or the Depositary Shares evidenced
thereby or the Stock represented by such Depositary Shares shall
be listed on one or more stock exchanges, the Depositary shall,
with the approval of the Company, appoint a Registrar for registry
of such Receipts or Depositary Shares in accordance with the
requirements of such exchange or exchanges. Such Registrar (which
may be the Depositary if so permitted by the requirements of such
exchange or exchanges) may be removed and a substitute registrar
appointed by the Depositary upon the request or with the approval
of the Company. In addition, if the Receipts, such Depositary
Shares or such Stock are listed on one or more stock exchanges,
the Depositary will, at the request of the Company, arrange such
facilities for the delivery, registration, registration of
transfer, surrender and exchange, split-up, combination,
redemption or conversion of such Receipts, such Depositary Shares
or such Stock as may be required by law or applicable stock
exchange regulations.
SECTION 5.02. Prevention of Delay in Performance by the
Depositary, The Depositary's Agents, the Registrar or the Company.
Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company shall incur any liability to any holder
of any Receipt, if by reason of any provision of any present or
future law or regulation thereunder of the United States of
America or of any other governmental authority or, in the case of
the Depositary, the Registrar or any Depositary's Agent, by reason
of any provision, present or future, of the Certificate of
Incorporation or the Certificate of Designations or, in the case
of the Company, the Depositary, the Registrar or any Depositary's
Agent, by reason of any act of God or war or other circumstances
beyond the control of the relevant party, the Depositary, any
Depositary's Agent, the Registrar or the Company shall be
prevented or forbidden from doing or performing any act or thing
that the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, the
Registrar or the Company incur any liability to any holder of a
Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms
of this Deposit Agreement provide shall or may be done or
performed, or (ii) by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement
except, in the case of the Depositary, any Depositary's Agent or
the Registrar, if any such exercise or failure to exercise
discretion is caused by its negligence or bad faith.
SECTION 5.03. Obligations of the Depositary, the
Depositary's Agents, the Registrar and the Company. The Company
assumes no obligation and shall be subject to no liability under
this Deposit Agreement or the Receipts to holders or other
persons, except to perform in good faith such obligations as are
specifically set forth and undertaken by it to perform in this
Deposit Agreement. Each of the Depositary, the Depositary's
Agents and the Registrar assumes no obligation and shall be
subject to no liability under this Deposit Agreement or the
Receipts to holders or other persons, except to perform such
obligations as are specifically set forth and undertaken by it to
perform in this Deposit Agreement without negligence or bad faith.
Neither the Depositary nor any Depositary's Agent nor
the Registrar nor the Company shall be under any obligation to
appear in, prosecute or defend any action, suit or other
proceeding with respect to Stock, Depositary Shares or Receipts
that in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor
the Registrar nor the Company shall be liable for any action or
any failure to act by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting
Stock for deposit, any holder of a Receipt or any other person
believed by it in good faith to be competent to give such advice
or information. The Depositary, any Depositary's Agent, the
Registrar and the company may each rely and shall each be
protected in acting upon any written notice, request, direction or
other document believed by it to be genuine and to have been
signed or presented by the proper party or parties.
The Depositary, the Registrar and any Depositary's Agent
may own and deal in any class of securities of the Company and its
affiliates and in Receipts or Depositary Shares. The Depositary
may also act as transfer agent or registrar of any of the
securities of the Company and its affiliates.
It is intended that neither the Depositary nor any
Depositary's Agent nor the Registrar shall be deemed to be an
"issuer" of the Stock, the Depositary Shares or the Receipts or
other securities issued upon conversion, exchange or redemption of
the Stock under the federal securities laws or applicable state
securities laws, it being expressly understood and agreed that the
Depositary and any Depositary's Agent and the Registrar are acting
only in a ministerial capacity; provided, however, that the
Depositary agrees to comply with all information reporting and
withholding requirements applicable to it under law or this
Deposit Agreement in its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees
or agents) nor any Depositary's Agent nor the Registrar makes any
representation or has any responsibility as to the validity of the
Registration Statement pursuant to which the Depositary Shares are
registered under the Securities Act, the Stock, the Depositary
Shares or any instruments referred to therein or herein, or as to
the correctness of any statement made therein or herein; provided,
however, that the Depositary is responsible for its
representations in this Deposit Agreement.
The Depositary assumes no responsibility for the
correctness of the description that appears in the Receipts, which
can be taken as a statement of the Company summarizing certain
provisions of this Deposit Agreement. Notwithstanding any other
provision herein or in the Receipts, the Depositary makes no
warranties or representations as to the validity, genuineness or
sufficiency of any Stock at any time deposited with the Depositary
hereunder or of the Depositary Shares, as to the validity or
sufficiency of this Deposit Agreement, as to the value of the
Depositary Shares or as to any right, title or interest of the
record holders of Receipts in and to the Depositary Shares except
that the Depositary hereby represents and warrants as follows: (i)
the Depositary has been duly organized and is validly existing and
in good standing under the laws of the jurisdiction of its
incorporation, with full power, authority and legal right under
such law to execute, deliver and carry out the terms of this
Deposit Agreement; (ii) this Deposit Agreement has been duly
authorized, executed and delivered by the Depositary; and (iii)
this Deposit Agreement constitutes a valid and binding obligation
of the Depositary, enforceable against the Depositary in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or other similar
laws affecting enforcement of creditors, rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law). The Depositary shall not be
accountable for the use or application by the Company of the
Depositary Shares or the Receipts or the proceeds thereof.
SECTION 5.04. Resignation and Removal of the Depositary,
Appointment of Successor Depositary. The Depositary may at any
time resign as Depositary hereunder by written notice via
registered mail of its election to do so delivered to the Company,
such resignation to take effect upon the appointment of a
successor depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Company
by written notice of such removal delivered to the Depositary,
such removal to take effect upon the appointment of a successor
depositary and its acceptance of such appointment as hereinafter
provided.
In case at any time the Depositary acting hereunder
shall resign or be removed, the Company shall, within 60 days
after the delivery of the notice of resignation or removal, as the
case may be, appoint a successor depositary, which shall be a bank
or trust company, or an affiliate of a bank or trust company,
having its principal office in the United States of America and
having a combined capital and surplus of at least $50,000,000. If
a successor depositary shall not have been appointed in 60 days,
the resigning or removed Depositary may petition a court of
competent jurisdiction to appoint a successor depositary. Every
successor depositary shall execute and deliver to its predecessor
and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary,
without any further act or deed, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor
and for all purposes shall be the Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it
and on the written request of the Company, shall promptly execute
and deliver an instrument transferring to such successor all
rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all rights, title and interest in the
Stock and any moneys or property held hereunder to such successor
and shall deliver to such successor a list of the record holders
of all outstanding Receipts. Any successor depositary shall
promptly mail notice of its appointment to the record holders of
Receipts.
Any corporation into or with which the Depositary may be
merged, consolidated or converted shall be the successor of such
Depositary without the execution or filing of any document or any
further act. Such successor depositary may execute the Receipts
either in the name of the predecessor depositary or in the name of
the successor depositary.
SECTION 5.05. Corporate Notices and Reports. The
Company agrees that it will deliver to the Depositary, and the
Depositary will, promptly after receipt thereof, transmit to the
record holders of Receipts, in each case at the address recorded
in the Depositary's books, copies of all notices and reports
(including financial statements) required by law, by the rules of
any national securities exchange upon which the Stock, the
Depositary Shares or the Receipts are listed or by the Certificate
of Incorporation and the Certificate of Designations to be
furnished by the Company to holders of Stock. Such transmission
will be at the Company's expense and the Company will provide the
Depositary with such number of copies of such documents as the
Depositary may reasonably request. In addition, the Depositary
will transmit to the record holders of Receipts at the Company's
expense such other documents as may be requested by the Company.
SECTION 5.06. Deposit of Stock by the Company. The
Company agrees with the Depositary that neither the Company nor
any company controlled by the Company will at any time deposit any
Stock if such Stock is required to be registered under the
provisions of the Securities Act and no registration statement is
at such time in effect as to such Stock.
SECTION 5.07. Indemnification by the Company. The
Company agrees to indemnify the Depositary, any Depositary's Agent
and any Registrar against, and hold each of then harmless from,
any liability, costs and expenses (including reasonable fees and
expenses of counsel) that may arise out of or in connection with
its acting as Depositary, Depositary's Agent or Registrar,
respectively, under this Deposit Agreement and the Receipts,
except for any liability arising out of negligence, bad faith or
willful misconduct on the part of any such person or persons.
SECTION 5.08. Fees, Charges and Expenses. No fees,
charges and expenses of the Depositary or any Depositary's Agent
hereunder or of any Registrar shall be payable by any person other
than the Company, except for any taxes and other governmental
charges and except as provided in this Deposit Agreement. If, at
the request of a holder of a Receipt, the Depositary incurs fees,
charges or expenses for which it is not otherwise liable
hereunder, such holder or other person will be liable for such
fees, charges and expenses. All other fees, charges and expenses
of the Depositary and any Depositary's Agent hereunder and of any
Registrar (including, in each case, reasonable fees and expenses
of counsel) incident to the performance of their respective
obligations hereunder will be paid from time to time upon
consultation and agreement between the Depositary and the Company
as to the amount and nature of such fees, charges and expenses.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and
any provision of this Deposit Agreement may at any time and from
time to time be amended by agreement between the Company and the
Depositary in any respect that they may deem necessary or
desirable; provided, however, that no such amendment that shall
materially and adversely alter the rights of the holders of
Receipts shall be effective as to outstanding Receipts until the
expiration of 90 days after notice of such amendment shall have
been given to the record holders of outstanding Receipts and
unless such amendment shall have been approved by the holders of
at least a majority of the Depositary Shares outstanding. Every
holder of an outstanding Receipt at the time 90 days after such
notice of amendment shall have been given shall be deemed, by
continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended
thereby. In no event shall any amendment impair the right,
subject to the provisions of Sections 2.03, 2.06 and 2.07 and
Article III, of any owner of any Depositary Shares to surrender
the Receipt evidencing such Depositary Shares with instructions to
the Depositary to deliver to the holder the Stock and all money
and other property, if any, represented thereby, except in order
to comply with mandatory provisions of applicable law.
SECTION 6.02. Termination. Whenever so directed by the
Company, the Depositary will terminate this Deposit Agreement by
mailing notice of such termination to the record holders of all
Receipts then outstanding at least 30 days prior to the date fixed
in such notice for such termination. The Depositary may likewise
terminate this Deposit Agreement if at any time 45 days shall have
expired after the Depositary shall have delivered to the Company a
written notice of its election to resign and a successor
depositary shall not have been appointed and accepted its
appointment as provided in Section 5.04.
If any Receipts shall remain outstanding after the date
of termination of this Deposit Agreement, the Depositary
thereafter shall discontinue the transfer of Receipts, shall
suspend the distribution of dividends to the holders thereof and
shall not give any further notices (other than notice of such
termination) or perform any further acts under this Deposit
Agreement, except as provided below and that the Depositary shall
continue to collect dividends and other distributions pertaining
to Stock, shall sell rights, preferences or privileges as provided
in this Deposit Agreement and shall continue to deliver the Stock
and any money and other property represented by Receipts, without
liability for interest thereon, upon surrender thereof by the
holders thereof. At any time after the expiration of two years
from the date of termination, the Depositary may sell Stock then
held hereunder at public or private sale, at such places and upon
such terms as it deems proper and may thereafter hold in a
segregated account the net proceeds of any such sale, together
with any money and other property held by it hereunder, without
liability for interest, for the benefit, pro rata in accordance
with their holdings, of the holders of Receipts that have not
heretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under this
Deposit Agreement except to account for such net proceeds and
money and other property. Upon the termination of this Deposit
Agreement, the Company shall be discharged from all obligations
under this Deposit Agreement except for its obligations to the
Depositary, any Depositary's Agent and any Registrar under
Sections 5.07 and 5.08. In the event this Deposit Agreement is
terminated, the Company hereby agrees to use its best efforts to
list the underlying Stock on the New York Stock Exchange, Inc.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may
be executed by the Company and the Depositary in separate
counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts
taken together shall constitute one and the same instrument.
Delivery of an executed counterpart of a signature page to this
Deposit Agreement by telecopier shall be effective as delivery of
a manually executed counterpart of this Deposit Agreement. Copies
of this Deposit Agreement shall be filed with the Depositary and
the Depositary's Agents and shall be open to inspection during
business hours at the corporate office and the New York Office and
the respective offices of the Depositary's Agents, if any, by any
holder of a Receipt.
SECTION 7.02. Exclusive Benefits of Parties. This
Deposit Agreement is for the exclusive benefit of the parties
hereto, and their respective successors hereunder, and shall not
be deemed to give any legal or equitable right, remedy or claim to
any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one
or more of the provisions contained in this Deposit Agreement or
in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION 7.04. Notices. Any notices to be given to the
Company hereunder or under the Receipts shall be in writing and
shall be deemed to have been duly given if personally delivered or
sent by mail, or by telegram or telex or telecopier confirmed by
letter, addressed to the Company at 1615 Poydras St., New Orleans,
Louisiana 70112, Attention: Secretary, or at any other place to
which the Company may have transferred its principal executive
office.
Any notices to be given to the Depositary hereunder or
under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by
telegram or telex or telecopier confirmed by letter, addressed to
the Depositary at the Corporate Office.
Any notices given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by
mail, or by telegram or telex or telecopier confirmed by letter,
addressed to such record holder at the address of such record
holder as it appears on the books of the Depositary or, if such
holder shall have filed with the Depositary a written request that
notices intended for such holder be mailed to some other address,
at the address designated in such request.
Delivery of a notice sent by mail, or by telegram or
telex or telecopier shall be deemed to be effected at the time
when a duly addressed letter containing the same (or a duly
addressed letter confirming an earlier notice in the case of a
telegram or telex or telecopier message) is deposited, postage
prepaid, in a post office letter box. The Depositary or the
Company may, however, act upon any telegram or telex or telecopier
message received by it from the other or from any holder of a
Receipt, notwithstanding that such telegram or telex or telecopier
message shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may,
with the approval of the Company which approval shall not be
unreasonably withheld, from time to time appoint one or more
Depositary's Agents to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may vary or terminate
the appointment of such Depositary's Agents.
SECTION 7.06. Holders of Receipts Are Parties.
Notwithstanding that holders of Receipts have not executed and
delivered this Deposit Agreement or any counterpart thereof, the
holders of Receipts from time to time shall be deemed to be
parties to this Deposit Agreement and shall be bound by all of the
terms and conditions, and be entitled to all of the benefits,
hereof and of the Receipts by acceptance of delivery of Receipts.
SECTION 7.07. Governing Law. This Deposit Agreement and
the Receipts and all rights hereunder and thereunder and
provisions hereof and thereof shall be governed by, and construed
in accordance with, the law of the State of New York without
giving effect to principles of conflict of laws.
SECTION 7.08. Headings. The headings of articles and
sections in this Deposit Agreement and in the form of the Receipt
set forth in Exhibit A hereto have been inserted for convenience
only and are not to be regarded as a part of this Deposit
Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the
Receipts.
IN WITNESS WHEREOF, Freeport-McMoRan Copper & Gold Inc.
and _____________________________ have duly executed this Deposit
Agreement as of the day and year first above set forth and all
holders of Receipts shall become parties hereto by and upon
acceptance by them of delivery of Receipts issued in accordance
with the terms hereof.
FREEPORT-McMoRan
COPPER & GOLD INC.
Attest:
By: ________________________ By: _________________________
Authorized officer
Attest:
By: _________________________ By: __________________________
Authorized Officer
<PAGE>
EXHIBIT A
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES
EACH REPRESENTING_________________________[OF A] SHARE OF
PREFERRED STOCK
OF
FREEPORT-McMoRan COPPER & GOLD INC.
(Incorporated under the Laws of the State of Delaware)
No.
(the "Depositary") hereby certifies
that is the registered owner of
Depositary Shares (the "Depositary Shares"), each Depositary
Share representing of a share of Preferred
Stock $0.10 par value (the "Stock"), of Freeport-McMoRan Copper &
Gold Inc., a corporation duly organized and existing under the
laws of the State of Delaware (the "Company"), deposited with the
Depositary and the same proportionate interest in any and all
other property received by the Depositary in respect of such
shares of Stock and held by the Depositary under the Deposit
Agreement (as defined below). Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share is entitled,
proportionately, to all the rights, preferences and privileges of
the Stock represented thereby, including the dividend, conversion,
exchange, voting, liquidation and other rights contained in the
Certificate of Designations establishing the rights, preferences,
privileges and limitations of the Stock (the "Certificate of
Designations"), copies of which are on file at the office of the
Depositary at which at any particular time its business in respect
of matters governed by the Deposit Agreement shall be
administered, which at the time of the execution of the Deposit
Agreement is located at (the
"Corporate Office").
This Depositary Receipt ("Receipt") shall not be
entitled to any benefits under the Deposit Agreement or be valid
or obligatory for any purpose unless this Receipt shall have been
executed manually or, if a Registrar for the Receipts (other than
the Depositary) shall have been appointed, by facsimile by the
Depositary by the signature of a duly authorized officer and, if
executed by facsimile signature of the Depositary, shall have been
countersigned manually by such Registrar by the signature of a
duly authorized officer.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF
ANY DEPOSITED STOCK. THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR
THE CORRECTNESS OF THE DESCRIPTION SET FORTH IN THIS RECEIPT,
WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY SUMMARIZING
CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS EXPRESSLY SET
FORTH IN THE DEPOSIT AGREEMENT, THE DEPOSITARY MAKES NO WARRANTIES
OR REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY
OF ANY STOCK AT ANY TIME DEPOSITED WITH THE DEPOSITARY UNDER THE
DEPOSIT AGREEMENT OR OF THE DEPOSITARY SHARES, AS TO THE VALIDITY
OR SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE
DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE
RECORD HOLDERS OF THE DEPOSITARY RECEIPTS IN AND TO THE DEPOSITARY
SHARES.
The Company will furnish to any holder of this Receipt
without charge, upon request addressed to its executive office, a
full statement of the designation, relative rights, preferences
and limitations of the shares of each authorized class, and of
each class of preferred stock authorized to be issued, so far as
the same may have been fixed, and a statement of the authority of
the Board of Directors of the Company to designate and fix the
relative rights, preferences and limitations of other classes.
This Receipt is continued on the reverse hereof and the
additional provisions therein set forth for all purposes have the
same effect as if set forth at this place.
Dated:
_______________________________
as Depositary and Registrar
By: ____________________________
Authorized Officer
Further Conditions and Agreements Forming Part of this Receipt
Appear on the Reverse Side.
<PAGE>
[FORM OF REVERSE
OF DEPOSITARY RECEIPT]
1. The Deposit Agreement. Depositary Receipts (the
"Receipts"), of which this Receipt is one, are made available upon
the terms and conditions set forth in the Deposit Agreement, dated
as of ____________________ (the "Deposit Agreement"), among the
Company, the Depositary and all holders from time to time of
Receipts. The Deposit Agreement (copies of which are on file at
the Corporate office, the office maintained by the Depositary in
the Borough of Manhattan, the City of New York which at the time
of the execution of the Deposit Agreement is located at
____________________________ (the "New York Office") and at the
office of any agent of tiie Depositary) sets forth the rights of
holders of Receipts and the rights and duties of the Depositary.
The statements made on the face and the reverse of this Receipt
are summaries of certain provisions of the Deposit Agreement and
are subject to the detailed provisions thereof, to which reference
is hereby made. In the event of any conflict between the
provisions of this Receipt and the provisions of the Deposit
Agreement, the provisions of the Deposit Agreement will govern.
2. Definitions. Unless otherwise expressly herein
provided, all defined terms used herein shall have the meanings
ascribed thereto in the Deposit Agreement.
3. Redemption, Exchange and Conversion of Stock.
Whenever the Company shall elect to redeem or exchange or be
required to convert shares of Stock in accordance with the
Certificate of Designations, it shall (unless otherwise agreed in
writing with the Depositary) give the Depositary in its capacity
as Depositary not less than 5 business days' prior notice of the
proposed date of the mailing of a notice or redemption, exchange
or conversion of Stock and the simultaneous redemption, exchange
or conversion of the Depositary shares representing the Stock to
be redeemed, exchanged or converted and of the number of such
shares of Stock held by the Depositary to be redeemed, exchanged
or converted. The Depositary shall, as directed by the company in
writing, mail, first class postage prepaid, notice of the
redemption, exchange or conversion of Stock and the proposed
simultaneous, redemption, exchange or conversion of Depositary
Shares representing the Stock to be redeemed, exchanged or
converted, not less than 15 and not more than 60 days prior to the
date fixed for redemption, exchange or conversion of such Stock
and Depositary Shares, to the record holders of the Receipts
evidencing the Depositary Shares to be so redeemed, exchanged or
converted, at the addresses of such holders as the same appear on
the records of such holders as the same appear on the records of
the Depositary; provided, that if the effectiveness of a Merger or
Consolidation (as defined in the Certificate of Designations)
makes it impracticable to provide at least 15 days notice, the
Depositary shall provide such notice as soon as practicable prior
to such effectiveness. Any such notice shall also be published in
the same manner as notices of redemption, exchange or conversion
of the Stock are required to be published pursuant to Section
_____ of the Certificate of Designations. On the date of any such
redemption, exchange or conversion, the Depositary shall surrender
the certificate or certificates held by the Depositary evidencing
the number of shares of Stock to be redeemed, exchanged or
converted in the manner specified in the notice of redemption,
exchange or conversion of Stock provided by the Company pursuant
to Section ____ of the Certificate of Designations. The
Depositary shall, thereafter, redeem, exchange or convert the
number of Depositary shares representing such redeemed, exchanged
or converted Stock upon the surrender of Receipts evidencing such
Depositary Shares in the manner provided in the notice sent to
record holders of Receipts. In case fewer than all the
outstanding Depositary Shares are to be redeemed, the Depositary
Shares to be redeemed shall be selected by the Depositary by lot
or on a pro rata basis at the direction of the Company. Notice
having been mailed and published as aforesaid, from and after the
redemption, exchange or conversion date (unless the Company shall
have failed to redeem, exchange, or convert the shares of Stock to
be redeemed, exchanged or converted by it upon the surrender of
the certificate or certificates therefor by the Depositary as
described above), the Depositary Shares called for redemption or
exchange or subject to conversion shall be deemed no longer to be
outstanding and all rights of the holders of Receipts evidencing
such Depositary Shares shall, to the extent of such Depositary
Shares, cease and terminate. Upon surrender in accordance with
said notice of the Receipts evidencing such Depositary Shares
(properly endorsed or assigned for transfer, if the Depositary
shall so require), such Depositary Shares shall be converted or
exchanged into shares of Stock at a rate equal to ________ of the
number of shares of Stock delivered, and the holders thereof shall
be entitled to of the cash payable, in respect of the shares of
Stock pursuant to the Certificate of Designations. The foregoing
is subject further to the terms and conditions of the Certificate
of Designations. If fewer than all of the Depositary Shares
evidenced by this Receipt are called for redemption, the
Depositary will deliver to the holder of this Receipt upon it
surrender to the Depositary, together with the redemption price
(whether to be paid in the form of cash, shares of Stock or other
form or forms of consideration) and all accrued and unpaid
dividends to and including the date fixed for redemption payable
in respect of the Depositary Shares called for redemption, a new
Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption.
4.Surrender of Receipts and Withdrawal of Stock. Upon
surrender of this Receipt to the Depositary at the Corporate
office, the New York Office or at such other offices as the
Depositary may designate, and subject to the provisions of the
Deposit Agreement, the holder hereof is entitled to withdraw, and
to obtain delivery, without unreasonable delay, to or upon the
order of such holder, any or all of the Stock (but only in whole
shares of Stock) and all money and other property, if any, at the
time represented by the Depositary Shares evidenced by this
Receipt; provided, however, that, in the event this Receipt shall
evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the whole number of shares of Stock
to be withdrawn, the Depositary shall, in addition to such whole
number of shares of Stock and such money and other property, if
any, to be withdrawn, deliver, to or upon the order of such
holder, a new Receipt or Receipts evidencing such excess number of
whole Depositary Shares.
5. Transfers, Split-ups, Combinations. Subject to
Paragraphs 6, 7 and 8 below, this Receipt is transferable on the
books of the Depositary upon surrender of this Receipt to the
Depositary at the Corporate Office or the New York Office, or at
such other offices as the Depositary may designate, properly
endorsed or accompanied by a properly executed instrument of
transfer, and upon such transfer the Depositary shall sign and
deliver a Receipt or Receipts to or upon the order of the person
entitled thereto, all as provided in and subject to the Deposit
Agreement. This Receipt may be split into other Receipts or
combined with other Receipts into one Receipt evidencing the same
aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered; provided, however, that the Depositary shall
not issue any Receipt evidencing a fractional Depositary Share.
6. Conditions to Signing and Delivery, Transfer, etc.,
of Receipts. Prior to the execution and delivery, registration of
transfer, split-up, combination, surrender or exchange of this
Receipt, the delivery of any distribution hereon or the withdrawal
or deposit of Stock, the Depositary, any of the Depositary's
Agents or the Company may require any or all of the following: (i)
payment to it of a sum sufficient for the payment (or, in the
event that the Depositary or the Company shall have made such
payment, the reimbursement to it) of any tax or other governmental
charge with respect thereto (including any such tax or charge with
respect to Stock being deposited or withdrawn or with respect to
Stock of the Company being issued upon conversion, exchange or
redemption); (ii) production of proof satisfactory to it as to the
identity and genuineness of any signature; and (iii) compliance
with such reasonable regulations, if any, as the Depositary or the
Company may establish not inconsistent with the Deposit Agreement.
Any person presenting Stock for deposit, or any holder of this
Receipt, may be required to file such proof of information, to
execute such certificates and to make such representations and
warranties as the Depositary or the Company may reasonably deem
necessary or proper. The Depositary or the Company may withhold
or delay the delivery of this Receipt, the registration of
transfer, redemption, conversion or exchange of this Receipt, the
withdrawal of the Stock represented by the Depositary Shares
evidenced by this Receipt or the distribution of any dividend or
other distribution until such proof or other information is filed,
such certificates are executed or such representations and
warranties are made.
7. Suspension of Delivery, Transfer, etc. the deposit of
Stock may be refused and the delivery of this Receipt against
Stock or the registration of transfer, split-up, combination,
surrender or exchange of this Receipt and the withdrawal of
deposited Stock may be suspended (i) during any period when the
register of stockholders of the Company is closed, (ii) if any
such action is deemed necessary or advisable by the Depositary,
any of the Depositary's Agents or the Company at any time or from
time to time because of any requirement of law or of any
government or governmental body or commission, or under any
provision of the Deposit Agreement, or (iii) with the approval of
the Company, for any other reason. The Depositary shall not be
required to (a) to issue, transfer or exchange any Receipts for a
period beginning at the opening of business 15 days next preceding
any selection of Depositary Shares and Stock to be redeemed and
ending at the close of business on the day of the mailing of
notice of redemption of Depositary Shares or (b) to transfer or
exchange for another Receipt any Receipt evidencing Depositary
Shares called or being called for redemption, in whole or in part,
subject to conversion or exchange except as provided in the last
sentence of Paragraph 3.
8. Payment of Taxes or Other Governmental Charges. If
any tax or other governmental charge shall become payable by or on
behalf of the Depositary with respect to (i) this Receipt, (ii)
the Depositary Shares evidenced by this Receipt, (iii) the Stock
(or fractional interest therein) or other property represented by
such Depositary Shares, or (iv) any transaction referred to in
Section 4.06, of the Deposit Agreement, such tax (including
transfer, issuance or acquisition taxes, if any) or governmental
charge shall be payable by the holder of this Receipt, who shall
pay the amount thereof to the Depositary. Until such payment is
made, registration of transfer of this Receipt or any split-up or
combination hereof or any withdrawal of the Stock or money or
other property, if any, represented by the Depositary Shares
evidenced by this Receipt may be refused, any dividend or other
distribution may be withheld and any part or all of the Stock or
other property represented by the Depositary Shares evidenced by
this Receipt may be sold for the account of the holder hereof
(after attempting by reasonable means to notify such holder prior
to such sale). Any dividend or other distribution so withheld and
the proceeds of any such sale may be applied to any payment of
such tax or other governmental charge, the holder of this Receipt
remaining liable for any deficiency.
9. Amendment. The form of the Receipts and any provision
of the Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any
respect that they may deem necessary or desirable; provided,
however, that no such amendment that shall materially and
adversely alter the rights of the holders of Receipt shall be
effective as to outstanding Receipts until the expiration of 90
days after notice of such amendment shall have been given to the
record holders of outstanding Receipts and unless such amendment
shall have been approved by the holders of at least a majority of
the Depositary Shares outstanding. Every holder of an outstanding
Receipt at the time 90 days after such notice of amendment shall
have been given shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by
the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right, subject to the provisions of
Paragraphs 3, 4 6, 7, and 8 hereof and of Sections 2.03, 2.06 and
2.07 and Article III of the Deposit Agreement, of the owner of the
Depositary Shares evidenced by this Receipt to surrender this
Receipt with instructions to the Depositary to deliver to the
holder the Stock and all money and other property, if any,
represented thereby, except in order to comply with mandatory
provisions of applicable law.
10.Fees, Charges and Expenses. The Company will pay all
fees, charges and expenses of the Depositary, except for taxes
(including transfer taxes, if any) and other governmental charges
and such charges as are expressly provided in the Deposit
Agreement to be at the expense of persons depositing Stock,
holders of Receipts or other persons.
11.Title to Receipts. It is a condition of this
Receipt, and every successive holder hereof by accepting or
holding the same consents and agrees, that title to this Receipt
(and to the Depositary Shares evidenced hereby), when properly
endorsed or accompanied by a properly executed instrument of
transfer, is transferable by delivery with the same effect as in
the case of investment securities in general; provided, however,
that the Depositary may, notwithstanding any notice to the
contrary, treat the record holder hereof at such time as the
absolute owner hereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to
any notice provided for in the Deposit Agreement and for all other
purposes.
12. Dividends and Distributions. Whenever the
Depositary shall receive any cash dividend or other cash
distribution on the Stock, the Depositary shall, subject to the
provisions of the Deposit Agreement, distribute to record holders
of Receipts such amounts of such sums as are, as nearly as
practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such holders; provided,
however, that in case the Company or the Depositary shall be
required by law to withhold and does withhold from any cash
dividend or other cash distribution in respect of the Stock an
amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares shall
be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount,
however, as can be distributed without attributing to any owner of
Depositary Shares a fraction of one cent and any balance not so
distributable shall be held by the Depositary (without liability
for interest thereon) and shall be added to and be treated as part
of the next sum received by the Depositary for distribution to
record holders of Receipts then outstanding.
13.Subscription Rights, Preferences or Privileges. If
the Company shall at any time offer or cause to be offered to the
persons in whose name Stock is registered on the books of the
Company any rights, preferences or privileges to subscribe for or
to purchase any securities or any rights, preferences or
privileges of any other nature, such rights, preferences or
privileges shall in each such instance, subject to the provisions
of the Deposit Agreement, be made available by the Depositary to
the record holders of Receipts in such manner as the Company shall
instruct.
14. Notice of Dividends, Fixing of Record Date.
Whenever (i) any cash dividend or other cash distribution shall
become payable, or any distribution other than cash shall be made,
or any rights, preferences or privileges shall at any time be
offered, with respect to the Stock, or (ii) the Depositary shall
receive notice of any meeting at which holders of Stock are
entitled to vote or of which holders of Stock are entitled to
notice, or of the mandatory conversion of, or any election on the
part of the Company to call for redemption or exchange of, any
shares of Stock, the Depositary shall in each such instance fix a
record date (which shall be the same date as the record date fixed
by the Company with respect to the Stock) for the determination of
the holders of Receipts (x) who shall be entitled to receive such
dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or (y) who shall be entitled to
give instructions for the exercise of voting rights at any such
meeting or of such meeting or to receive notice of such
conversion, exchange or redemption.
15.Voting Rights. Upon receipt of notice of any meeting
at which the holders of Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the record
holders of Receipts a notice, which shall contain (i) such
information as is contained in such notice of meeting, (ii) a
statement that the holders of Receipts at the close of business on
a specified record date determined as provided in Paragraph 14
will be entitled, subject to any applicable provision of law, the
Certificate of Incorporation or the Certificate of Designations,
to instruct the Depositary as to the exercise of the voting rights
pertaining to the Stock represented by their respective Depositary
Shares, and (iii) a brief statement as to the manner in which such
instructions may be given. Upon the written request of a holder
of this Receipt on such record date the Depositary shall endeavor
insofar as practicable to vote or cause to be voted the Stock
represented by the Depositary Shares evidenced by this Receipt in
accordance with the instructions set forth in such request. The
Company hereby agrees to take all reasonable action that may be
deemed necessary by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted. In
the absence of specific instructions from the holder of this
Receipt, the Depositary will abstain from voting to the extent of
the Stock represented by the Depositary Shares evidenced by this
Receipt.
16. Reports, Inspection of Transfer Books. The
Depositary shall make available for inspection by holders of
Receipts at the Corporate Office, the New York Office and at such
other places as it may from time to time deem advisable during
normal business hours any reports and communications received from
the Company that are received by the Depositary as the holder of
Stock. The Depositary, acting as transfer agent and Registrar,
shall keep books at the Corporate Office for the registration and
transfer of Receipts, which books at all reasonable times will be
open for inspection by the record holders of Receipts; provided
that any such holder requesting to exercise such right shall
certify to the Depositary that such inspection shall be for a
proper purpose reasonably related to such person's interest as an
owner of Depositary Shares.
17. Liability of the Depositary, the Depositary's Agents,
the Registrar and the Company. Neither the Depositary nor any
Depositary's Agent nor the Registrar nor the Company shall incur
any liability to any holder of this Receipt, if by reason of any
provision of any present or future law or regulation thereunder of
any governmental authority or, in the case of the Depositary, the
Registrar or any Depositary's Agent, by reason of any provision
present or future, of the Certificate of Incorporation or the
Certificate of Designations or, in the case of the Company, the
Depositary, the Registrar or any Depositary's Agent, by reason of
any act of God or war or other circumstances beyond the control of
the relevant party, the Depositary, any Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from
doing or performing any act or thing that the terms of the Deposit
Agreement provide shall be done or performed; nor shall the
Depositary, any Depositary's Agent, the Registrar or the company
incur any liability to any holder of this Receipt (i) by reason of
any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing that the terms of the Deposit
Agreement provide shall or may be done or performed or (ii) by
reason of any exercise of, or failure to exercise, any discretion
provided for in the Deposit Agreement except, in the case of the
Depositary, any Depositary's Agent or the Registrar, if such
exercise or failure to exercise discretion is caused by its
negligence or bad faith.
18. Obligations of the Depositary, the Depositary Agent,
the Registrar and the Company. The Company assumes no obligation
and shall be subject to no liability under the Deposit Agreement
or this Receipt to the holder hereof or other persons, except to
perform in good faith such obligations as are specifically set
forth and undertaken by it to perform in the Deposit Agreement.
Each of the Depositary, the Depositary's Agents and the Registrar
assumes no obligation and shall be subject to no liability under
the Deposit Agreement or this Receipt to the holder hereof or
other persons, except to perform such obligations as are
specifically set forth and undertaken by it to perform in the
Deposit Agreement without negligence or bad faith.
Neither the Depositary nor any Depositary's Agent nor
the Registrar nor the Company shall be under any obligation to
appear in, prosecute or defend any action, suit or other
proceeding with respect to Stock, Depositary Shares or Receipts
that in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor
the Registrar nor the Company will be liable for any action or
failure to act by it in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Stock for
deposit, any holder of this Receipt or any other person believed
by it in good faith to be competent to give such advice or
information.
19. Termination of Deposit Agreement. Whenever so
directed by the Company, the Depositary will terminate the Deposit
Agreement by mailing notice of such termination to the record
holders of all Receipts then outstanding at least 30 days prior to
the date fixed in such notice for such termination. The
Depositary may likewise terminate the Deposit Agreement if at any
time 90 days shall have expired after the Depositary shall have
delivered to the Company a written notice of its election to
resign and a successor depositary shall not have been appointed
and accepted its appointment as provided in Section 5.04 of the
Deposit Agreement. Upon the termination of the Deposit Agreement,
the Company shall be discharged from all obligations thereunder
except for its obligations to the Depositary, any Depositary's
Agent and any Registrar under Sections 5.07 and 5.08 of the
Deposit Agreement.
If any Receipts remain outstanding after the date of
termination of the Deposit Agreement, the Depositary thereafter
shall discontinue all functions and be discharged from all
obligations as provided in the Deposit Agreement, except as
specifically provided therein.
20. Governing Law. The Deposit Agreement and this
Receipt and all rights thereunder and hereunder and provisions
thereof and hereof shall be governed by, and construed in
accordance with, the law of the State of New York without giving
effect to principles of conflict of laws.
<PAGE>
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________ the within Receipt and all rights
and interests represented by the Depositary shares evidenced
thereby, and hereby irrevocably constitutes and appoints
_______________________ his attorney, to transfer the same on the
books of the within-named Depositary, with full power of
substitution in the premises.
Dated: Signature: ____________________
NOTE: The signature to this
assignment must correspond with
the name as written upon the
face of the Receipt in every
particular, without alteration
or enlargement, or any change
whatever.
Exhibit 4.13
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES
EACH REPRESENTING_________________________[OF A] SHARE OF
PREFERRED STOCK
OF
FREEPORT-McMoRan COPPER & GOLD INC.
(Incorporated under the Laws of the State of Delaware)
No.
________________________ (the "Depositary") hereby certifies
that ____________________________ is the registered owner of
Depositary Shares (the "Depositary Shares"), each Depositary
Share representing ______________________ of a share of Preferred
Stock $0.10 par value (the "Stock"), of Freeport-McMoRan Copper &
Gold Inc., a corporation duly organized and existing under the
laws of the State of Delaware (the "Company"), deposited with the
Depositary and the same proportionate interest in any and all
other property received by the Depositary in respect of such
shares of Stock and held by the Depositary under the Deposit
Agreement (as defined below). Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share is entitled,
proportionately, to all the rights, preferences and privileges of
the Stock represented thereby, including the dividend, conversion,
exchange, voting, liquidation and other rights contained in the
Certificate of Designations establishing the rights, preferences,
privileges and limitations of the Stock (the "Certificate of
Designations"), copies of which are on file at the office of the
Depositary at which at any particular time its business in respect
of matters governed by the Deposit Agreement shall be
administered, which at the time of the execution of the Deposit
Agreement is located at ________________________________ (the
"Corporate Office").
This Depositary Receipt ("Receipt") shall not be
entitled to any benefits under the Deposit Agreement or be valid
or obligatory for any purpose unless this Receipt shall have been
executed manually or, if a Registrar for the Receipts (other than
the Depositary) shall have been appointed, by facsimile by the
Depositary by the signature of a duly authorized officer and, if
executed by facsimile signature of the Depositary, shall have been
countersigned manually by such Registrar by the signature of a
duly authorized officer.
THE DEPOSITARY IS NOT RESPONSIBLE FOR THE VALIDITY OF
ANY DEPOSITED STOCK. THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR
THE CORRECTNESS OF THE DESCRIPTION SET FORTH IN THIS RECEIPT,
WHICH CAN BE TAKEN AS A STATEMENT OF THE COMPANY SUMMARIZING
CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS EXPRESSLY SET
FORTH IN THE DEPOSIT AGREEMENT, THE DEPOSITARY MAKES NO WARRANTIES
OR REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY
OF ANY STOCK AT ANY TIME DEPOSITED WITH THE DEPOSITARY UNDER THE
DEPOSIT AGREEMENT OR OF THE DEPOSITARY SHARES, AS TO THE VALIDITY
OR SUFFICIENCY OF THE DEPOSIT AGREEMENT, AS TO THE VALUE OF THE
DEPOSITARY SHARES OR AS TO ANY RIGHT, TITLE OR INTEREST OF THE
RECORD HOLDERS OF THE DEPOSITARY RECEIPTS IN AND TO THE DEPOSITARY
SHARES.
The Company will furnish to any holder of this Receipt
without charge, upon request addressed to its executive office, a
full statement of the designation, relative rights, preferences
and limitations of the shares of each authorized class, and of
each class of preferred stock authorized to be issued, so far as
the same may have been fixed, and a statement of the authority of
the Board of Directors of the Company to designate and fix the
relative rights, preferences and limitations of other classes.
This Receipt is continued on the reverse hereof and the
additional provisions therein set forth for all purposes have the
same effect as if set forth at this place.
Dated:
_____________________________
as Depositary and Registrar
By: ___________________________
Authorized Officer
Further Conditions and Agreements Forming Part of this Receipt
Appear on the Reverse Side.
<PAGE>
[FORM OF REVERSE
OF DEPOSITARY RECEIPT]
1. The Deposit Agreement. Depositary Receipts (the
"Receipts"), of which this Receipt is one, are made available upon
the terms and conditions set forth in the Deposit Agreement, dated
as of ____________________ (the "Deposit Agreement"), among the
Company, the Depositary and all holders from time to time of
Receipts. The Deposit Agreement (copies of which are on file at
the Corporate office, the office maintained by the Depositary in
the Borough of Manhattan, the City of New York which at the time
of the execution of the Deposit Agreement is located at
____________________________ (the "New York Office") and at the
office of any agent of tiie Depositary) sets forth the rights of
holders of Receipts and the rights and duties of the Depositary.
The statements made on the face and the reverse of this Receipt
are summaries of certain provisions of the Deposit Agreement and
are subject to the detailed provisions thereof, to which reference
is hereby made. In the event of any conflict between the
provisions of this Receipt and the provisions of the Deposit
Agreement, the provisions of the Deposit Agreement will govern.
2. Definitions. Unless otherwise expressly herein
provided, all defined terms used herein shall have the meanings
ascribed thereto in the Deposit Agreement.
3. Redemption, Exchange and Conversion of Stock.
Whenever the Company shall elect to redeem or exchange or be
required to convert shares of Stock in accordance with the
Certificate of Designations, it shall (unless otherwise agreed in
writing with the Depositary) give the Depositary in its capacity
as Depositary not less than 5 business days' prior notice of the
proposed date of the mailing of a notice or redemption, exchange
or conversion of Stock and the simultaneous redemption, exchange
or conversion of the Depositary shares representing the Stock to
be redeemed, exchanged or converted and of the number of such
shares of Stock held by the Depositary to be redeemed, exchanged
or converted. The Depositary shall, as directed by the company in
writing, mail, first class postage prepaid, notice of the
redemption, exchange or conversion of Stock and the proposed
simultaneous, redemption, exchange or conversion of Depositary
Shares representing the Stock to be redeemed, exchanged or
converted, not less than 15 and not more than 60 days prior to the
date fixed for redemption, exchange or conversion of such Stock
and Depositary Shares, to the record holders of the Receipts
evidencing the Depositary Shares to be so redeemed, exchanged or
converted, at the addresses of such holders as the same appear on
the records of such holders as the same appear on the records of
the Depositary; provided, that if the effectiveness of a Merger or
Consolidation (as defined in the Certificate of Designations)
makes it impracticable to provide at least 15 days notice, the
Depositary shall provide such notice as soon as practicable prior
to such effectiveness. Any such notice shall also be published in
the same manner as notices of redemption, exchange or conversion
of the Stock are required to be published pursuant to Section
_____ of the Certificate of Designations. On the date of any such
redemption, exchange or conversion, the Depositary shall surrender
the certificate or certificates held by the Depositary evidencing
the number of shares of Stock to be redeemed, exchanged or
converted in the manner specified in the notice of redemption,
exchange or conversion of Stock provided by the Company pursuant
to Section ____ of the Certificate of Designations. The
Depositary shall, thereafter, redeem, exchange or convert the
number of Depositary shares representing such redeemed, exchanged
or converted Stock upon the surrender of Receipts evidencing such
Depositary Shares in the manner provided in the notice sent to
record holders of Receipts. In case fewer than all the
outstanding Depositary Shares are to be redeemed, the Depositary
Shares to be redeemed shall be selected by the Depositary by lot
or on a pro rata basis at the direction of the Company. Notice
having been mailed and published as aforesaid, from and after the
redemption, exchange or conversion date (unless the Company shall
have failed to redeem, exchange, or convert the shares of Stock to
be redeemed, exchanged or converted by it upon the surrender of
the certificate or certificates therefor by the Depositary as
described above), the Depositary Shares called for redemption or
exchange or subject to conversion shall be deemed no longer to be
outstanding and all rights of the holders of Receipts evidencing
such Depositary Shares shall, to the extent of such Depositary
Shares, cease and terminate. Upon surrender in accordance with
said notice of the Receipts evidencing such Depositary Shares
(properly endorsed or assigned for transfer, if the Depositary
shall so require), such Depositary Shares shall be converted or
exchanged into shares of Stock at a rate equal to ________ of the
number of shares of Stock delivered, and the holders thereof shall
be entitled to of the cash payable, in respect of the shares of
Stock pursuant to the Certificate of Designations. The foregoing
is subject further to the terms and conditions of the Certificate
of Designations. If fewer than all of the Depositary Shares
evidenced by this Receipt are called for redemption, the
Depositary will deliver to the holder of this Receipt upon it
surrender to the Depositary, together with the redemption price
(whether to be paid in the form of cash, shares of Stock or other
form or forms of consideration) and all accrued and unpaid
dividends to and including the date fixed for redemption payable
in respect of the Depositary Shares called for redemption, a new
Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption.
4.Surrender of Receipts and Withdrawal of Stock. Upon
surrender of this Receipt to the Depositary at the Corporate
office, the New York Office or at such other offices as the
Depositary may designate, and subject to the provisions of the
Deposit Agreement, the holder hereof is entitled to withdraw, and
to obtain delivery, without unreasonable delay, to or upon the
order of such holder, any or all of the Stock (but only in whole
shares of Stock) and all money and other property, if any, at the
time represented by the Depositary Shares evidenced by this
Receipt; provided, however, that, in the event this Receipt shall
evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the whole number of shares of Stock
to be withdrawn, the Depositary shall, in addition to such whole
number of shares of Stock and such money and other property, if
any, to be withdrawn, deliver, to or upon the order of such
holder, a new Receipt or Receipts evidencing such excess number of
whole Depositary Shares.
5. Transfers, Split-ups, Combinations. Subject to
Paragraphs 6, 7 and 8 below, this Receipt is transferable on the
books of the Depositary upon surrender of this Receipt to the
Depositary at the Corporate Office or the New York Office, or at
such other offices as the Depositary may designate, properly
endorsed or accompanied by a properly executed instrument of
transfer, and upon such transfer the Depositary shall sign and
deliver a Receipt or Receipts to or upon the order of the person
entitled thereto, all as provided in and subject to the Deposit
Agreement. This Receipt may be split into other Receipts or
combined with other Receipts into one Receipt evidencing the same
aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered; provided, however, that the Depositary shall
not issue any Receipt evidencing a fractional Depositary Share.
6. Conditions to Signing and Delivery, Transfer, etc.,
of Receipts. Prior to the execution and delivery, registration of
transfer, split-up, combination, surrender or exchange of this
Receipt, the delivery of any distribution hereon or the withdrawal
or deposit of Stock, the Depositary, any of the Depositary's
Agents or the Company may require any or all of the following: (i)
payment to it of a sum sufficient for the payment (or, in the
event that the Depositary or the Company shall have made such
payment, the reimbursement to it) of any tax or other governmental
charge with respect thereto (including any such tax or charge with
respect to Stock being deposited or withdrawn or with respect to
Stock of the Company being issued upon conversion, exchange or
redemption); (ii) production of proof satisfactory to it as to the
identity and genuineness of any signature; and (iii) compliance
with such reasonable regulations, if any, as the Depositary or the
Company may establish not inconsistent with the Deposit Agreement.
Any person presenting Stock for deposit, or any holder of this
Receipt, may be required to file such proof of information, to
execute such certificates and to make such representations and
warranties as the Depositary or the Company may reasonably deem
necessary or proper. The Depositary or the Company may withhold
or delay the delivery of this Receipt, the registration of
transfer, redemption, conversion or exchange of this Receipt, the
withdrawal of the Stock represented by the Depositary Shares
evidenced by this Receipt or the distribution of any dividend or
other distribution until such proof or other information is filed,
such certificates are executed or such representations and
warranties are made.
7. Suspension of Delivery, Transfer, etc. the deposit of
Stock may be refused and the delivery of this Receipt against
Stock or the registration of transfer, split-up, combination,
surrender or exchange of this Receipt and the withdrawal of
deposited Stock may be suspended (i) during any period when the
register of stockholders of the Company is closed, (ii) if any
such action is deemed necessary or advisable by the Depositary,
any of the Depositary's Agents or the Company at any time or from
time to time because of any requirement of law or of any
government or governmental body or commission, or under any
provision of the Deposit Agreement, or (iii) with the approval of
the Company, for any other reason. The Depositary shall not be
required to (a) to issue, transfer or exchange any Receipts for a
period beginning at the opening of business 15 days next preceding
any selection of Depositary Shares and Stock to be redeemed and
ending at the close of business on the day of the mailing of
notice of redemption of Depositary Shares or (b) to transfer or
exchange for another Receipt any Receipt evidencing Depositary
Shares called or being called for redemption, in whole or in part,
subject to conversion or exchange except as provided in the last
sentence of Paragraph 3.
8. Payment of Taxes or Other Governmental Charges. If
any tax or other governmental charge shall become payable by or on
behalf of the Depositary with respect to (i) this Receipt, (ii)
the Depositary Shares evidenced by this Receipt, (iii) the Stock
(or fractional interest therein) or other property represented by
such Depositary Shares, or (iv) any transaction referred to in
Section 4.06, of the Deposit Agreement, such tax (including
transfer, issuance or acquisition taxes, if any) or governmental
charge shall be payable by the holder of this Receipt, who shall
pay the amount thereof to the Depositary. Until such payment is
made, registration of transfer of this Receipt or any split-up or
combination hereof or any withdrawal of the Stock or money or
other property, if any, represented by the Depositary Shares
evidenced by this Receipt may be refused, any dividend or other
distribution may be withheld and any part or all of the Stock or
other property represented by the Depositary Shares evidenced by
this Receipt may be sold for the account of the holder hereof
(after attempting by reasonable means to notify such holder prior
to such sale). Any dividend or other distribution so withheld and
the proceeds of any such sale may be applied to any payment of
such tax or other governmental charge, the holder of this Receipt
remaining liable for any deficiency.
9. Amendment. The form of the Receipts and any provision
of the Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any
respect that they may deem necessary or desirable; provided,
however, that no such amendment that shall materially and
adversely alter the rights of the holders of Receipt shall be
effective as to outstanding Receipts until the expiration of 90
days after notice of such amendment shall have been given to the
record holders of outstanding Receipts and unless such amendment
shall have been approved by the holders of at least a majority of
the Depositary Shares outstanding. Every holder of an outstanding
Receipt at the time 90 days after such notice of amendment shall
have been given shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by
the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right, subject to the provisions of
Paragraphs 3, 4 6, 7, and 8 hereof and of Sections 2.03, 2.06 and
2.07 and Article III of the Deposit Agreement, of the owner of the
Depositary Shares evidenced by this Receipt to surrender this
Receipt with instructions to the Depositary to deliver to the
holder the Stock and all money and other property, if any,
represented thereby, except in order to comply with mandatory
provisions of applicable law.
10.Fees, Charges and Expenses. The Company will pay all
fees, charges and expenses of the Depositary, except for taxes
(including transfer taxes, if any) and other governmental charges
and such charges as are expressly provided in the Deposit
Agreement to be at the expense of persons depositing Stock,
holders of Receipts or other persons.
11.Title to Receipts. It is a condition of this
Receipt, and every successive holder hereof by accepting or
holding the same consents and agrees, that title to this Receipt
(and to the Depositary Shares evidenced hereby), when properly
endorsed or accompanied by a properly executed instrument of
transfer, is transferable by delivery with the same effect as in
the case of investment securities in general; provided, however,
that the Depositary may, notwithstanding any notice to the
contrary, treat the record holder hereof at such time as the
absolute owner hereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to
any notice provided for in the Deposit Agreement and for all other
purposes.
12. Dividends and Distributions. Whenever the
Depositary shall receive any cash dividend or other cash
distribution on the Stock, the Depositary shall, subject to the
provisions of the Deposit Agreement, distribute to record holders
of Receipts such amounts of such sums as are, as nearly as
practicable, in proportion to the respective numbers of Depositary
Shares evidenced by the Receipts held by such holders; provided,
however, that in case the Company or the Depositary shall be
required by law to withhold and does withhold from any cash
dividend or other cash distribution in respect of the Stock an
amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares shall
be reduced accordingly. The Depositary shall distribute or make
available for distribution, as the case may be, only such amount,
however, as can be distributed without attributing to any owner of
Depositary Shares a fraction of one cent and any balance not so
distributable shall be held by the Depositary (without liability
for interest thereon) and shall be added to and be treated as part
of the next sum received by the Depositary for distribution to
record holders of Receipts then outstanding.
13. Subscription Rights, Preferences or Privileges. If
the Company shall at any time offer or cause to be offered to the
persons in whose name Stock is registered on the books of the
Company any rights, preferences or privileges to subscribe for or
to purchase any securities or any rights, preferences or
privileges of any other nature, such rights, preferences or
privileges shall in each such instance, subject to the provisions
of the Deposit Agreement, be made available by the Depositary to
the record holders of Receipts in such manner as the Company shall
instruct.
14. Notice of Dividends, Fixing of Record Date.
Whenever (i) any cash dividend or other cash distribution shall
become payable, or any distribution other than cash shall be made,
or any rights, preferences or privileges shall at any time be
offered, with respect to the Stock, or (ii) the Depositary shall
receive notice of any meeting at which holders of Stock are
entitled to vote or of which holders of Stock are entitled to
notice, or of the mandatory conversion of, or any election on the
part of the Company to call for redemption or exchange of, any
shares of Stock, the Depositary shall in each such instance fix a
record date (which shall be the same date as the record date fixed
by the Company with respect to the Stock) for the determination of
the holders of Receipts (x) who shall be entitled to receive such
dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or (y) who shall be entitled to
give instructions for the exercise of voting rights at any such
meeting or of such meeting or to receive notice of such
conversion, exchange or redemption.
15. Voting Rights. Upon receipt of notice of any meeting
at which the holders of Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the record
holders of Receipts a notice, which shall contain (i) such
information as is contained in such notice of meeting, (ii) a
statement that the holders of Receipts at the close of business on
a specified record date determined as provided in Paragraph 14
will be entitled, subject to any applicable provision of law, the
Certificate of Incorporation or the Certificate of Designations,
to instruct the Depositary as to the exercise of the voting rights
pertaining to the Stock represented by their respective Depositary
Shares, and (iii) a brief statement as to the manner in which such
instructions may be given. Upon the written request of a holder
of this Receipt on such record date the Depositary shall endeavor
insofar as practicable to vote or cause to be voted the Stock
represented by the Depositary Shares evidenced by this Receipt in
accordance with the instructions set forth in such request. The
Company hereby agrees to take all reasonable action that may be
deemed necessary by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted. In
the absence of specific instructions from the holder of this
Receipt, the Depositary will abstain from voting to the extent of
the Stock represented by the Depositary Shares evidenced by this
Receipt.
16. Reports, Inspection of Transfer Books. The
Depositary shall make available for inspection by holders of
Receipts at the Corporate Office, the New York Office and at such
other places as it may from time to time deem advisable during
normal business hours any reports and communications received from
the Company that are received by the Depositary as the holder of
Stock. The Depositary, acting as transfer agent and Registrar,
shall keep books at the Corporate Office for the registration and
transfer of Receipts, which books at all reasonable times will be
open for inspection by the record holders of Receipts; provided
that any such holder requesting to exercise such right shall
certify to the Depositary that such inspection shall be for a
proper purpose reasonably related to such person's interest as an
owner of Depositary Shares.
17. Liability of the Depositary, the Depositary's Agents,
the Registrar and the Company. Neither the Depositary nor any
Depositary's Agent nor the Registrar nor the Company shall incur
any liability to any holder of this Receipt, if by reason of any
provision of any present or future law or regulation thereunder of
any governmental authority or, in the case of the Depositary, the
Registrar or any Depositary's Agent, by reason of any provision
present or future, of the Certificate of Incorporation or the
Certificate of Designations or, in the case of the Company, the
Depositary, the Registrar or any Depositary's Agent, by reason of
any act of God or war or other circumstances beyond the control of
the relevant party, the Depositary, any Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from
doing or performing any act or thing that the terms of the Deposit
Agreement provide shall be done or performed; nor shall the
Depositary, any Depositary's Agent, the Registrar or the company
incur any liability to any holder of this Receipt (i) by reason of
any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing that the terms of the Deposit
Agreement provide shall or may be done or performed or (ii) by
reason of any exercise of, or failure to exercise, any discretion
provided for in the Deposit Agreement except, in the case of the
Depositary, any Depositary's Agent or the Registrar, if such
exercise or failure to exercise discretion is caused by its
negligence or bad faith.
18. Obligations of the Depositary, the Depositary Agent,
the Registrar and the Company. The Company assumes no obligation
and shall be subject to no liability under the Deposit Agreement
or this Receipt to the holder hereof or other persons, except to
perform in good faith such obligations as are specifically set
forth and undertaken by it to perform in the Deposit Agreement.
Each of the Depositary, the Depositary's Agents and the Registrar
assumes no obligation and shall be subject to no liability under
the Deposit Agreement or this Receipt to the holder hereof or
other persons, except to perform such obligations as are
specifically set forth and undertaken by it to perform in the
Deposit Agreement without negligence or bad faith.
Neither the Depositary nor any Depositary's Agent nor
the Registrar nor the Company shall be under any obligation to
appear in, prosecute or defend any action, suit or other
proceeding with respect to Stock, Depositary Shares or Receipts
that in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor
the Registrar nor the Company will be liable for any action or
failure to act by it in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Stock for
deposit, any holder of this Receipt or any other person believed
by it in good faith to be competent to give such advice or
information.
19 Termination of Deposit Agreement. Whenever so
directed by the Company, the Depositary will terminate the Deposit
Agreement by mailing notice of such termination to the record
holders of all Receipts then outstanding at least 30 days prior to
the date fixed in such notice for such termination. The
Depositary may likewise terminate the Deposit Agreement if at any
time 90 days shall have expired after the Depositary shall have
delivered to the Company a written notice of its election to
resign and a successor depositary shall not have been appointed
and accepted its appointment as provided in Section 5.04 of the
Deposit Agreement. Upon the termination of the Deposit Agreement,
the Company shall be discharged from all obligations thereunder
except for its obligations to the Depositary, any Depositary's
Agent and any Registrar under Sections 5.07 and 5.08 of the
Deposit Agreement.
If any Receipts remain outstanding after the date of
termination of the Deposit Agreement, the Depositary thereafter
shall discontinue all functions and be discharged from all
obligations as provided in the Deposit Agreement, except as
specifically provided therein.
20. Governing Law. The Deposit Agreement and this
Receipt and all rights thereunder and hereunder and provisions
thereof and hereof shall be governed by, and construed in
accordance with, the law of the State of New York without giving
effect to principles of conflict of laws.
<PAGE>
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto _______________ the within Receipt and all rights
and interests represented by the Depositary shares evidenced
thereby, and hereby irrevocably constitutes and appoints
_______________________ his attorney, to transfer the same on the
books of the within-named Depositary, with full power of
substitution in the premises.
Dated: Signature:______________________
NOTE: The signature to this
assignment must correspond with
the name as written upon the
face of the Receipt in every
particular, without alteration
or enlargement, or any change
whatever.
Exhibit 5
JONES, WALKER,
WAECHTER, POITEVENT,
CARRERE & DENEGRE, L.L.P
April 19, 1996
Freeport-McMoRan Copper & Gold Inc.
1615 Poydras Street
New Orleans, LA 70112
FCX Finance Company, B.V.
c/o ABN AMRO Trust Company (Nederland) B.V.
Coolsingel
139, 3000 DG Rotterdam
The Netherlands
Re: Registration Statement on Form S-3
Dear Sirs:
We are acting as special counsel for Freeport-McMoRan Copper
& Gold Inc., a Delaware corporation ("FCX"), and FCX Finance
Company, B.V., a private company with limited liability
incorporated in the Kingdom of the Netherlands ("FCX Finance"),
in connection with the Registration Statement on Form S-3 (the
"Registration Statement"), filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, for the
registration of the sale by FCX and FCX Finance, as the case may
be, from time to time of up to $750,000,000 maximum aggregate
initial offering price of (i) Debt Securities (the "Debt
Securities") to be issued and sold by FCX or FCX Finance, (ii)
unconditional and irrevocable guarantees (the "Guarantees") by
FCX of Debt Securities issued by FCX Finance, (iii) shares of
Preferred Stock, $0.10 par value per share (the "Preferred
Stock"), of FCX and (iv) Warrants ("Warrants") to purchase Debt
Securities and Preferred Stock. FCX may also offer Depositary
Shares (the "Depositary Shares") representing interests in
Preferred Stock deposited with a Depositary and evidenced by
Depositary Receipts, and such Depositary Shares are also covered
by the Registration Statement. The foregoing securities are
collectively referred to as the "Securities."
The Debt Securities will constitute either indebtedness
designated as senior indebtedness, indebtedness designated as
senior subordinated indebtedness or indebtedness designated as
subordinated indebtedness. The particular terms of each series
of Securities offered by a particular prospectus supplement and,
if Debt Securities are offered by FCX Finance, the particular
terms of Guarantees offered in connection therewith, will be
described in the prospectus supplement. The Debt Securities will
each be issued under indentures (individually, the "Indenture"
and collectively, the "Indentures") to be entered into prior to
the issuance of such Securities.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate
records, certificates of public officials and other instruments
as we have deemed necessary or advisable for purpose of this
opinion.
Based upon the foregoing, we are of the opinion that:
1. When the specific terms of a particular Debt
Security have been duly authorized and established in
accordance with the relevant Indenture, and such Debt
Security has been duly authorized, executed, authenticated,
issued and delivered in accordance with the terms of such
Indenture against payment therefor in accordance with the
applicable underwriting or other agreement or upon exchange
in accordance with the terms of any other Security that has
been duly authorized, issued, paid for and delivered, such
Debt Security will constitute the valid and binding
obligation of FCX or FCX Finance, as the case may be.
2. When the specific terms of a particular Guarantee
have been duly authorized and established in accordance with
the relevant Indenture and such Guarantee has been duly
authorized, executed, authenticated, issued and delivered in
accordance with the terms of such Indenture, such Guarantee
will constitute the valid and binding obligation of FCX.
3. Upon designation of the preferences and relative,
participating, optional and other special rights, and
qualifications, limitations or restrictions, of any series
of Preferred Stock by the Board of Directors of FCX and
proper filing with the Secretary of State of the State of
Delaware of a Certificate of Designations relating to such
series of Preferred Stock, all necessary corporate action on
the part of FCX will have been taken to authorize the
issuance and sale of such series of Preferred Stock proposed
to be sold by FCX, and when such shares of Preferred Stock
are issued and delivered against payment therefor in
accordance with the applicable underwriting or other
agreement or upon conversion in accordance with the terms of
any other Security that has been duly authorized, issued,
paid for and delivered, such shares will be validly issued,
fully paid and non-assessable.
4. When the specific terms of a particular Warrant
have been duly authorized and established and such Warrant
has been duly authorized, executed, issued and delivered
against payment therefor in accordance with the applicable
underwriting or other agreement, such Warrant will
constitute the valid and binding obligation of FCX.
5. When Depositary Shares evidenced by Depositary
Receipts are issued and delivered in accordance with the
terms of the Deposit Agreement against the deposit of duly
authorized, validly issued, fully paid and non-assessable
shares of Preferred Stock, such Depositary Shares will
entitle the holders thereof to the rights specified in the
Deposit Agreement.
In connection with our opinions expressed above, we have
assumed that, at or prior to the time of the delivery of any such
Security: (i) the Board of Directors of FCX or managing directors
of FCX Finance, as the case may be, shall have duly authorized
the issuance and sale of such Security and such authorization
shall not have been modified or rescinded; (ii) the Registration
Statement shall have been declared effective and such
effectiveness shall not have been terminated or rescinded; (iii)
the applicable Indentures, if any, shall have been duly
authorized, executed and delivered by FCX and FCX Finance, as the
case may be, and the applicable trustee and shall have been
qualified under the Trust Indenture Act of 1939, as amended; and
(iv) there will not have occurred any change in law affecting the
validity or enforceability of such Security. We have also
assumed that none of the terms of any Security to be established
subsequent to the date hereof nor the issuance and delivery of
such Security, nor the compliance by FCX with the terms of such
Security, nor the compliance by FCX with the terms of such
Security, will violate any applicable law or will result in a
violation of any provision of any instrument or agreement then
binding upon FCX, or any restriction imposed by any court or
governmental body having jurisdiction over FCX.
We are members of the Bar of the State of Louisiana and the
foregoing opinion is limited to the laws of the State of
Louisiana, the federal laws of the United States of America and
the General Corporation Law of the State of Delaware.
We hereby consent to the use of this opinion as an exhibit
to the Registration Statement of FCX relating to the Securities
and to the reference to our name in the Prospectus contained
therein. In giving this consent, we do not admit that we are
within the category of person whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the
general rules and regulations of the Commission.
Very truly yours,
JONES, WALKER, WAECHTER, POITEVENT,
CARRERE & DENEGRE L.L.P.
EXHIBIT 12.1
FREEPORT-McMoRan COPPER & GOLD INC.
Computation of Ratio of Earnings to Fixed Charges:
Years Ended December 31,
____________________________________________
1991 1992 1993 1994 1995
________ _________ ________ _________ _________
(In Thousands)
Income from continuing
operations $101,962 $129,893 $60,670 $130,241 $253,618
Add:
Provision for income taxes 45,585 103,726 67,589 123,412 234,044
Minority interests' share
of net income 12,199 31,075 9,134 25,439 57,100
Interest expense 21,451 18,897 15,327 - 47,900
Rental expense factor<F1> 841 876 3,190 2,333 1,002
_________ ________ _________ ________ ________
Earnings available for
fixed charges $182,038 $284,467 $155,910 $281,425 $593,664
========== ========= ========= ========= =========
Interest expense $ 21,451 $ 18,897 $ 15,327 $ - $ 47,900
Capitalized interest 18,276 23,974 24,519 35,110 49,758
Rental expense factor<F1> 841 876 3,190 2,333 1,002
________ _________ _________ _________ _________
Fixed charges $ 40,568 $ 43,747 $ 43,036 $ 37,443 $ 98,660
======== ========= ========= ========= =========
Ratio of earnings to fixed
charges<F2> 4.5x 6.5x 3.6x 7.5x 6.0x
____ ____ ____ ____ ____
Computation of Ratio of Earnings to Fixed Charges,
Preferred Stock Dividends and Minimum Distributions:
Years Ended December 31,
________________________________________________
1991 1992 1993 1994 1995
________ _________ ________ _________ _________
(In Thousands)
Income from continuing
operations $101,962 $129,893 $ 60,670 $130,241 $253,618
Add:
Provision for income taxes 45,585 103,726 67,589 123,412 234,044
Minority interests' share
of net income 12,199 31,075 9,134 25,439 57,100
Interest expense 21,451 18,897 15,327 - 47,900
Rental expense factor<F1> 841 876 3,190 2,333 1,002
_________ _________ ________ _________ _________
Earnings available for
fixed charges $182,038 $284,467 $155,910 $281,425 $593,664
========= ========= ======== ========== ========
Interest expense $21,451 $ 18,897 $ 15,327 $ - $ 47,900
Capitalized interest 18,276 23,974 24,519 35,110 49,758
Rental expense factor<F1> 841 876 3,190 2,333 1,002
Preferred dividends - 12,773 52,643 94,251 101,125
Minimum required Class A
distributions<F3> 14,138 24,970 29,447 - -
________ ________ _________ __________ ________
Fixed charges $54,706 $81,490 $125,126 $131,694 $199,785
======== ======== ========= ========== ========
Ratio of earnings to fixed
charges<F2> 3.3x 3.5x 1.2x 2.1x 3.0x
____ ____ ____ ____ ____
<F1> Portion of rent deemed representative of an interest factor.
<F2> For purposes of this calculation, earnings consist of income from
continuing operations before income taxes, minority interests and fixed
charges. Fixed charges include interest and that portion of rent deemed
representative of interest.
<F3> Minimum required distributions on the Class A Common Stock which ended
on May 1, 1993.
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated January 23,
1996 incorporated by reference in Freeport-McMoRan Copper & Gold Inc.'s Form
10-K for the year ended December 31, 1995 and to all references to our Firm
included in this registration statement.
/s/ Arthur Andersen LLP
______________________________
Arthur Andersen LLP
New Orleans, Louisiana
April 19, 1996
Exhibit 23.3
CONSENT
We consent to the use in this Registration Statement on Form
S-3 of Freeport-McMoRan Copper & Gold Inc. and FCX Finance
Company B.V. of our reports incorporated by reference therein and
to all references to our firm in the Registration Statement,
including the reference to us under the heading "Experts" in the
Prospectus comprising a part of the Registration Statement as
being experts in mining, geology and reserve determination.
INDEPENDENT MINING CONSULTANTS, INC.
Dated: April 18, 1996 By: /s/ Michael G. Hester
________________________________
Michael G. Hester
Vice President
Exhibit 24
POWER OF ATTORNEY
BE IT KNOWN, that the undersigned, in his capacity or
capacities as an officer or a member of the Board of Directors of
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the
"Company"), does hereby make, constitute and appoint RENE L.
LATIOLAIS, RICHARD C. ADKERSON and HENRY A. MILLER, and each of
them acting individually, his true and lawful attorney-in-fact
with power to act without the others and with full power of
substitution and resubstitution, to execute a Registration
Statement of the Company and any of the Company's wholly-owned
subsidiaries on Form S-3 (or on such other form as may be
determined to be applicable) providing for the registration under
the Securities Act of 1933, as amended, of common stock
(including Class A Common Stock and Class B Common Stock), debt
warrants, equity, warrants, preferred stock, debt securities,
guarantees and of other securities, if any, into which such
common stock, preferred stock or debt securities may be converted
or exchanged, and any amendment or amendments to such
Registration Statement, and to file same with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorneys,
and each of them, full power and authority to do and perform each
and every act and thing whatsoever that such attorney or
attorneys may deem necessary or advisable to carry out fully the
intent of the foregoing as the undersigned might or could do
personally or in the capacity or capacities as aforesaid, hereby
ratifying and confirming all acts and things that such attorney
or attorneys may do or cause to be done by virtue of this Power
of Attorney.
EXECUTED this 19th day of April, 1996.
/s/ James R. Moffett
____________________
James R. Moffett
<PAGE>
POWER OF ATTORNEY
BE IT KNOWN, that the undersigned, in his capacity or
capacities as an officer or a member of the Board of Directors of
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the
"Company"), does hereby make, constitute and appoint JAMES R.
MOFFETT, RICHARD C. ADKERSON and HENRY A. MILLER, and each of
them acting individually, his true and lawful attorney-in-fact
with power to act without the others and with full power of
substitution and resubstitution, to execute a Registration
Statement of the Company and any of the Company's wholly-owned
subsidiaries on Form S-3 (or on such other form as may be
determined to be applicable) providing for the registration under
the Securities Act of 1933, as amended, of common stock
(including Class A Common Stock and Class B Common Stock), debt
warrants, equity, warrants, preferred stock, debt securities,
guarantees and of other securities, if any, into which such
common stock, preferred stock or debt securities may be converted
or exchanged, and any amendment or amendments to such
Registration Statement, and to file same with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorneys,
and each of them, full power and authority to do and perform each
and every act and thing whatsoever that such attorney or
attorneys may deem necessary or advisable to carry out fully the
intent of the foregoing as the undersigned might or could do
personally or in the capacity or capacities as aforesaid, hereby
ratifying and confirming all acts and things that such attorney
or attorneys may do or cause to be done by virtue of this Power
of Attorney.
EXECUTED this 19th day of April, 1996.
/s/ Rene L. Latiolais
_____________________
Rene L. Latiolais
<PAGE>
POWER OF ATTORNEY
BE IT KNOWN, that the undersigned, in his capacity or
capacities as an officer or a member of the Board of Directors of
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the
"Company"), does hereby make, constitute and appoint JAMES R.
MOFFETT, RENE L. LATIOLAIS and HENRY A. MILLER, and each of them
acting individually, his true and lawful attorney-in-fact with
power to act without the others and with full power of
substitution and resubstitution, to execute a Registration
Statement of the Company and any of the Company's wholly-owned
subsidiaries on Form S-3 (or on such other form as may be
determined to be applicable) providing for the registration under
the Securities Act of 1933, as amended, of common stock
(including Class A Common Stock and Class B Common Stock), debt
warrants, equity, warrants, preferred stock, debt securities,
guarantees and of other securities, if any, into which such
common stock, preferred stock or debt securities may be converted
or exchanged, and any amendment or amendments to such
Registration Statement, and to file same with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorneys,
and each of them, full power and authority to do and perform each
and every act and thing whatsoever that such attorney or
attorneys may deem necessary or advisable to carry out fully the
intent of the foregoing as the undersigned might or could do
personally or in the capacity or capacities as aforesaid, hereby
ratifying and confirming all acts and things that such attorney
or attorneys may do or cause to be done by virtue of this Power
of Attorney.
EXECUTED this 19th day of April, 1996.
/s/ Richard C. Adkerson
________________________
Richard C. Adkerson
<PAGE>
POWER OF ATTORNEY
BE IT KNOWN, that the undersigned, in his capacity or
capacities as an officer or a member of the Board of Directors of
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the
"Company"), does hereby make, constitute and appoint JAMES R.
MOFFETT, RENE L. LATIOLAIS, RICHARD C. ADKERSON and HENRY A.
MILLER, and each of them acting individually, his true and lawful
attorney-in-fact with power to act without the others and with
full power of substitution and resubstitution, to execute a
Registration Statement of the Company and any of the Company's
wholly-owned subsidiaries on Form S-3 (or on such other form as
may be determined to be applicable) providing for the
registration under the Securities Act of 1933, as amended, of
common stock (including Class A Common Stock and Class B Common
Stock), debt warrants, equity, warrants, preferred stock, debt
securities, guarantees and of other securities, if any, into
which such common stock, preferred stock or debt securities may
be converted or exchanged, and any amendment or amendments to
such Registration Statement, and to file same with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorneys,
and each of them, full power and authority to do and perform each
and every act and thing whatsoever that such attorney or
attorneys may deem necessary or advisable to carry out fully the
intent of the foregoing as the undersigned might or could do
personally or in the capacity or capacities as aforesaid, hereby
ratifying and confirming all acts and things that such attorney
or attorneys may do or cause to be done by virtue of this Power
of Attorney.
EXECUTED this 19th day of April, 1996.
/s/ Robert W. Bruce III
________________________
Robert W. Bruce III
<PAGE>
POWER OF ATTORNEY
BE IT KNOWN, that the undersigned, in his capacity or
capacities as an officer or a member of the Board of Directors of
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the
"Company"), does hereby make, constitute and appoint JAMES R.
MOFFETT, RENE L. LATIOLAIS, RICHARD C. ADKERSON and HENRY A.
MILLER, and each of them acting individually, his true and lawful
attorney-in-fact with power to act without the others and with
full power of substitution and resubstitution, to execute a
Registration Statement of the Company and any of the Company's
wholly-owned subsidiaries on Form S-3 (or on such other form as
may be determined to be applicable) providing for the
registration under the Securities Act of 1933, as amended, of
common stock (including Class A Common Stock and Class B Common
Stock), debt warrants, equity, warrants, preferred stock, debt
securities, guarantees and of other securities, if any, into
which such common stock, preferred stock or debt securities may
be converted or exchanged, and any amendment or amendments to
such Registration Statement, and to file same with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorneys,
and each of them, full power and authority to do and perform each
and every act and thing whatsoever that such attorney or
attorneys may deem necessary or advisable to carry out fully the
intent of the foregoing as the undersigned might or could do
personally or in the capacity or capacities as aforesaid, hereby
ratifying and confirming all acts and things that such attorney
or attorneys may do or cause to be done by virtue of this Power
of Attorney.
EXECUTED this 19th day of April, 1996.
/s/ R. Leigh Clifford
______________________
R. Leigh Clifford
<PAGE>
POWER OF ATTORNEY
BE IT KNOWN, that the undersigned, in his capacity or
capacities as an officer or a member of the Board of Directors of
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the
"Company"), does hereby make, constitute and appoint JAMES R.
MOFFETT, RENE L. LATIOLAIS, RICHARD C. ADKERSON and HENRY A.
MILLER, and each of them acting individually, his true and lawful
attorney-in-fact with power to act without the others and with
full power of substitution and resubstitution, to execute a
Registration Statement of the Company and any of the Company's
wholly-owned subsidiaries on Form S-3 (or on such other form as
may be determined to be applicable) providing for the
registration under the Securities Act of 1933, as amended, of
common stock (including Class A Common Stock and Class B Common
Stock), debt warrants, equity, warrants, preferred stock, debt
securities, guarantees and of other securities, if any, into
which such common stock, preferred stock or debt securities may
be converted or exchanged, and any amendment or amendments to
such Registration Statement, and to file same with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorneys,
and each of them, full power and authority to do and perform each
and every act and thing whatsoever that such attorney or
attorneys may deem necessary or advisable to carry out fully the
intent of the foregoing as the undersigned might or could do
personally or in the capacity or capacities as aforesaid, hereby
ratifying and confirming all acts and things that such attorney
or attorneys may do or cause to be done by virtue of this Power
of Attorney.
EXECUTED this 19th day of April, 1996.
/s/ Thomas B. Coleman
______________________
Thomas B. Coleman
<PAGE>
POWER OF ATTORNEY
BE IT KNOWN, that the undersigned, in his capacity or
capacities as an officer or a member of the Board of Directors of
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the
"Company"), does hereby make, constitute and appoint JAMES R.
MOFFETT, RENE L. LATIOLAIS, RICHARD C. ADKERSON and HENRY A.
MILLER, and each of them acting individually, his true and lawful
attorney-in-fact with power to act without the others and with
full power of substitution and resubstitution, to execute a
Registration Statement of the Company and any of the Company's
wholly-owned subsidiaries on Form S-3 (or on such other form as
may be determined to be applicable) providing for the
registration under the Securities Act of 1933, as amended, of
common stock (including Class A Common Stock and Class B Common
Stock), debt warrants, equity, warrants, preferred stock, debt
securities, guarantees and of other securities, if any, into
which such common stock, preferred stock or debt securities may
be converted or exchanged, and any amendment or amendments to
such Registration Statement, and to file same with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorneys,
and each of them, full power and authority to do and perform each
and every act and thing whatsoever that such attorney or
attorneys may deem necessary or advisable to carry out fully the
intent of the foregoing as the undersigned might or could do
personally or in the capacity or capacities as aforesaid, hereby
ratifying and confirming all acts and things that such attorney
or attorneys may do or cause to be done by virtue of this Power
of Attorney.
EXECUTED this 19th day of April, 1996.
/s/ Bobby E. Cooper
____________________
Bobby E. Cooper
<PAGE>
POWER OF ATTORNEY
BE IT KNOWN, that the undersigned, in his capacity or
capacities as an officer or a member of the Board of Directors of
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the
"Company"), does hereby make, constitute and appoint JAMES R.
MOFFETT, RENE L. LATIOLAIS, RICHARD C. ADKERSON and HENRY A.
MILLER, and each of them acting individually, his true and lawful
attorney-in-fact with power to act without the others and with
full power of substitution and resubstitution, to execute a
Registration Statement of the Company and any of the Company's
wholly-owned subsidiaries on Form S-3 (or on such other form as
may be determined to be applicable) providing for the
registration under the Securities Act of 1933, as amended, of
common stock (including Class A Common Stock and Class B Common
Stock), debt warrants, equity, warrants, preferred stock, debt
securities, guarantees and of other securities, if any, into
which such common stock, preferred stock or debt securities may
be converted or exchanged, and any amendment or amendments to
such Registration Statement, and to file same with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorneys,
and each of them, full power and authority to do and perform each
and every act and thing whatsoever that such attorney or
attorneys may deem necessary or advisable to carry out fully the
intent of the foregoing as the undersigned might or could do
personally or in the capacity or capacities as aforesaid, hereby
ratifying and confirming all acts and things that such attorney
or attorneys may do or cause to be done by virtue of this Power
of Attorney.
EXECUTED this 19th day of April, 1996.
/s/ Robert A. Day
__________________
Robert A. Day
<PAGE>
POWER OF ATTORNEY
BE IT KNOWN, that the undersigned, in his capacity or
capacities as an officer or a member of the Board of Directors of
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the
"Company"), does hereby make, constitute and appoint JAMES R.
MOFFETT, RENE L. LATIOLAIS, RICHARD C. ADKERSON and HENRY A.
MILLER, and each of them acting individually, his true and lawful
attorney-in-fact with power to act without the others and with
full power of substitution and resubstitution, to execute a
Registration Statement of the Company and any of the Company's
wholly-owned subsidiaries on Form S-3 (or on such other form as
may be determined to be applicable) providing for the
registration under the Securities Act of 1933, as amended, of
common stock (including Class A Common Stock and Class B Common
Stock), debt warrants, equity, warrants, preferred stock, debt
securities, guarantees and of other securities, if any, into
which such common stock, preferred stock or debt securities may
be converted or exchanged, and any amendment or amendments to
such Registration Statement, and to file same with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorneys,
and each of them, full power and authority to do and perform each
and every act and thing whatsoever that such attorney or
attorneys may deem necessary or advisable to carry out fully the
intent of the foregoing as the undersigned might or could do
personally or in the capacity or capacities as aforesaid, hereby
ratifying and confirming all acts and things that such attorney
or attorneys may do or cause to be done by virtue of this Power
of Attorney.
EXECUTED this 19th day of April, 1996.
/s/ Leland O.Erdahl
____________________
Leland O. Erdahl
<PAGE>
POWER OF ATTORNEY
BE IT KNOWN, that the undersigned, in his capacity or
capacities as an officer or a member of the Board of Directors of
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the
"Company"), does hereby make, constitute and appoint JAMES R.
MOFFETT, RENE L. LATIOLAIS, RICHARD C. ADKERSON and HENRY A.
MILLER, and each of them acting individually, his true and lawful
attorney-in-fact with power to act without the others and with
full power of substitution and resubstitution, to execute a
Registration Statement of the Company and any of the Company's
wholly-owned subsidiaries on Form S-3 (or on such other form as
may be determined to be applicable) providing for the
registration under the Securities Act of 1933, as amended, of
common stock (including Class A Common Stock and Class B Common
Stock), debt warrants, equity, warrants, preferred stock, debt
securities, guarantees and of other securities, if any, into
which such common stock, preferred stock or debt securities may
be converted or exchanged, and any amendment or amendments to
such Registration Statement, and to file same with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorneys,
and each of them, full power and authority to do and perform each
and every act and thing whatsoever that such attorney or
attorneys may deem necessary or advisable to carry out fully the
intent of the foregoing as the undersigned might or could do
personally or in the capacity or capacities as aforesaid, hereby
ratifying and confirming all acts and things that such attorney
or attorneys may do or cause to be done by virtue of this Power
of Attorney.
EXECUTED this 19th day of April, 1996.
/s/ William B. Harrison, Jr.
____________________________
William B. Harrison, Jr.
<PAGE>
POWER OF ATTORNEY
BE IT KNOWN, that the undersigned, in his capacity or
capacities as an officer or a member of the Board of Directors of
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the
"Company"), does hereby make, constitute and appoint JAMES R.
MOFFETT, RENE L. LATIOLAIS, RICHARD C. ADKERSON and HENRY A.
MILLER, and each of them acting individually, his true and lawful
attorney-in-fact with power to act without the others and with
full power of substitution and resubstitution, to execute a
Registration Statement of the Company and any of the Company's
wholly-owned subsidiaries on Form S-3 (or on such other form as
may be determined to be applicable) providing for the
registration under the Securities Act of 1933, as amended, of
common stock (including Class A Common Stock and Class B Common
Stock), debt warrants, equity, warrants, preferred stock, debt
securities, guarantees and of other securities, if any, into
which such common stock, preferred stock or debt securities may
be converted or exchanged, and any amendment or amendments to
such Registration Statement, and to file same with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorneys,
and each of them, full power and authority to do and perform each
and every act and thing whatsoever that such attorney or
attorneys may deem necessary or advisable to carry out fully the
intent of the foregoing as the undersigned might or could do
personally or in the capacity or capacities as aforesaid, hereby
ratifying and confirming all acts and things that such attorney
or attorneys may do or cause to be done by virtue of this Power
of Attorney.
EXECUTED this 19th day of April, 1996.
/s/ Henry A. Kissinger
_______________________
Henry A. Kissinger
<PAGE>
POWER OF ATTORNEY
BE IT KNOWN, that the undersigned, in his capacity or
capacities as an officer or a member of the Board of Directors of
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the
"Company"), does hereby make, constitute and appoint JAMES R.
MOFFETT, RENE L. LATIOLAIS, RICHARD C. ADKERSON and HENRY A.
MILLER, and each of them acting individually, his true and lawful
attorney-in-fact with power to act without the others and with
full power of substitution and resubstitution, to execute a
Registration Statement of the Company and any of the Company's
wholly-owned subsidiaries on Form S-3 (or on such other form as
may be determined to be applicable) providing for the
registration under the Securities Act of 1933, as amended, of
common stock (including Class A Common Stock and Class B Common
Stock), debt warrants, equity, warrants, preferred stock, debt
securities, guarantees and of other securities, if any, into
which such common stock, preferred stock or debt securities may
be converted or exchanged, and any amendment or amendments to
such Registration Statement, and to file same with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorneys,
and each of them, full power and authority to do and perform each
and every act and thing whatsoever that such attorney or
attorneys may deem necessary or advisable to carry out fully the
intent of the foregoing as the undersigned might or could do
personally or in the capacity or capacities as aforesaid, hereby
ratifying and confirming all acts and things that such attorney
or attorneys may do or cause to be done by virtue of this Power
of Attorney.
EXECUTED this 19th day of April, 1996.
/s/ Bobby Lee Lackey
____________________
Bobby Lee Lackey
<PAGE>
POWER OF ATTORNEY
BE IT KNOWN, that the undersigned, in his capacity or
capacities as an officer or a member of the Board of Directors of
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the
"Company"), does hereby make, constitute and appoint JAMES R.
MOFFETT, RENE L. LATIOLAIS, RICHARD C. ADKERSON and HENRY A.
MILLER, and each of them acting individually, his true and lawful
attorney-in-fact with power to act without the others and with
full power of substitution and resubstitution, to execute a
Registration Statement of the Company and any of the Company's
wholly-owned subsidiaries on Form S-3 (or on such other form as
may be determined to be applicable) providing for the
registration under the Securities Act of 1933, as amended, of
common stock (including Class A Common Stock and Class B Common
Stock), debt warrants, equity, warrants, preferred stock, debt
securities, guarantees and of other securities, if any, into
which such common stock, preferred stock or debt securities may
be converted or exchanged, and any amendment or amendments to
such Registration Statement, and to file same with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorneys,
and each of them, full power and authority to do and perform each
and every act and thing whatsoever that such attorney or
attorneys may deem necessary or advisable to carry out fully the
intent of the foregoing as the undersigned might or could do
personally or in the capacity or capacities as aforesaid, hereby
ratifying and confirming all acts and things that such attorney
or attorneys may do or cause to be done by virtue of this Power
of Attorney.
EXECUTED this 19th day of April, 1996.
/s/ Gabrielle K. McDonald
__________________________
Gabrielle K. McDonald
<PAGE>
POWER OF ATTORNEY
BE IT KNOWN, that the undersigned, in his capacity or
capacities as an officer or a member of the Board of Directors of
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the
"Company"), does hereby make, constitute and appoint JAMES R.
MOFFETT, RENE L. LATIOLAIS, RICHARD C. ADKERSON and HENRY A.
MILLER, and each of them acting individually, his true and lawful
attorney-in-fact with power to act without the others and with
full power of substitution and resubstitution, to execute a
Registration Statement of the Company and any of the Company's
wholly-owned subsidiaries on Form S-3 (or on such other form as
may be determined to be applicable) providing for the
registration under the Securities Act of 1933, as amended, of
common stock (including Class A Common Stock and Class B Common
Stock), debt warrants, equity, warrants, preferred stock, debt
securities, guarantees and of other securities, if any, into
which such common stock, preferred stock or debt securities may
be converted or exchanged, and any amendment or amendments to
such Registration Statement, and to file same with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorneys,
and each of them, full power and authority to do and perform each
and every act and thing whatsoever that such attorney or
attorneys may deem necessary or advisable to carry out fully the
intent of the foregoing as the undersigned might or could do
personally or in the capacity or capacities as aforesaid, hereby
ratifying and confirming all acts and things that such attorney
or attorneys may do or cause to be done by virtue of this Power
of Attorney.
EXECUTED this 19th day of April, 1996.
/s/ George A. Mealey
_____________________
George A. Mealey
<PAGE>
POWER OF ATTORNEY
BE IT KNOWN, that the undersigned, in his capacity or
capacities as an officer or a member of the Board of Directors of
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the
"Company"), does hereby make, constitute and appoint JAMES R.
MOFFETT, RENE L. LATIOLAIS, RICHARD C. ADKERSON and HENRY A.
MILLER, and each of them acting individually, his true and lawful
attorney-in-fact with power to act without the others and with
full power of substitution and resubstitution, to execute a
Registration Statement of the Company and any of the Company's
wholly-owned subsidiaries on Form S-3 (or on such other form as
may be determined to be applicable) providing for the
registration under the Securities Act of 1933, as amended, of
common stock (including Class A Common Stock and Class B Common
Stock), debt warrants, equity, warrants, preferred stock, debt
securities, guarantees and of other securities, if any, into
which such common stock, preferred stock or debt securities may
be converted or exchanged, and any amendment or amendments to
such Registration Statement, and to file same with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorneys,
and each of them, full power and authority to do and perform each
and every act and thing whatsoever that such attorney or
attorneys may deem necessary or advisable to carry out fully the
intent of the foregoing as the undersigned might or could do
personally or in the capacity or capacities as aforesaid, hereby
ratifying and confirming all acts and things that such attorney
or attorneys may do or cause to be done by virtue of this Power
of Attorney.
EXECUTED this 19th day of April, 1996.
/s/ George Putnam
__________________
George Putnam
<PAGE>
POWER OF ATTORNEY
BE IT KNOWN, that the undersigned, in his capacity or
capacities as an officer or a member of the Board of Directors of
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the
"Company"), does hereby make, constitute and appoint JAMES R.
MOFFETT, RENE L. LATIOLAIS, RICHARD C. ADKERSON and HENRY A.
MILLER, and each of them acting individually, his true and lawful
attorney-in-fact with power to act without the others and with
full power of substitution and resubstitution, to execute a
Registration Statement of the Company and any of the Company's
wholly-owned subsidiaries on Form S-3 (or on such other form as
may be determined to be applicable) providing for the
registration under the Securities Act of 1933, as amended, of
common stock (including Class A Common Stock and Class B Common
Stock), debt warrants, equity, warrants, preferred stock, debt
securities, guarantees and of other securities, if any, into
which such common stock, preferred stock or debt securities may
be converted or exchanged, and any amendment or amendments to
such Registration Statement, and to file same with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorneys,
and each of them, full power and authority to do and perform each
and every act and thing whatsoever that such attorney or
attorneys may deem necessary or advisable to carry out fully the
intent of the foregoing as the undersigned might or could do
personally or in the capacity or capacities as aforesaid, hereby
ratifying and confirming all acts and things that such attorney
or attorneys may do or cause to be done by virtue of this Power
of Attorney.
EXECUTED this 19th day of April, 1996.
/s/ B.M. Rankin, Jr.
_____________________
B.M. Rankin, Jr.
<PAGE>
POWER OF ATTORNEY
BE IT KNOWN, that the undersigned, in his capacity or
capacities as an officer or a member of the Board of Directors of
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the
"Company"), does hereby make, constitute and appoint JAMES R.
MOFFETT, RENE L. LATIOLAIS, RICHARD C. ADKERSON and HENRY A.
MILLER, and each of them acting individually, his true and lawful
attorney-in-fact with power to act without the others and with
full power of substitution and resubstitution, to execute a
Registration Statement of the Company and any of the Company's
wholly-owned subsidiaries on Form S-3 (or on such other form as
may be determined to be applicable) providing for the
registration under the Securities Act of 1933, as amended, of
common stock (including Class A Common Stock and Class B Common
Stock), debt warrants, equity, warrants, preferred stock, debt
securities, guarantees and of other securities, if any, into
which such common stock, preferred stock or debt securities may
be converted or exchanged, and any amendment or amendments to
such Registration Statement, and to file same with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorneys,
and each of them, full power and authority to do and perform each
and every act and thing whatsoever that such attorney or
attorneys may deem necessary or advisable to carry out fully the
intent of the foregoing as the undersigned might or could do
personally or in the capacity or capacities as aforesaid, hereby
ratifying and confirming all acts and things that such attorney
or attorneys may do or cause to be done by virtue of this Power
of Attorney.
EXECUTED this 19th day of April, 1996.
/s/ Wolfgang F. Seigel
_______________________
Wolfgang F. Siegel
<PAGE>
POWER OF ATTORNEY
BE IT KNOWN, that the undersigned, in his capacity or
capacities as an officer or a member of the Board of Directors of
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the
"Company"), does hereby make, constitute and appoint JAMES R.
MOFFETT, RENE L. LATIOLAIS, RICHARD C. ADKERSON and HENRY A.
MILLER, and each of them acting individually, his true and lawful
attorney-in-fact with power to act without the others and with
full power of substitution and resubstitution, to execute a
Registration Statement of the Company and any of the Company's
wholly-owned subsidiaries on Form S-3 (or on such other form as
may be determined to be applicable) providing for the
registration under the Securities Act of 1933, as amended, of
common stock (including Class A Common Stock and Class B Common
Stock), debt warrants, equity, warrants, preferred stock, debt
securities, guarantees and of other securities, if any, into
which such common stock, preferred stock or debt securities may
be converted or exchanged, and any amendment or amendments to
such Registration Statement, and to file same with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorneys,
and each of them, full power and authority to do and perform each
and every act and thing whatsoever that such attorney or
attorneys may deem necessary or advisable to carry out fully the
intent of the foregoing as the undersigned might or could do
personally or in the capacity or capacities as aforesaid, hereby
ratifying and confirming all acts and things that such attorney
or attorneys may do or cause to be done by virtue of this Power
of Attorney.
EXECUTED this 19th day of April, 1996.
/s/ Eiji Umene
________________
Eiji Umene
<PAGE>
POWER OF ATTORNEY
BE IT KNOWN, that the undersigned, in his capacity or
capacities as an officer or a member of the Board of Directors of
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the
"Company"), does hereby make, constitute and appoint JAMES R.
MOFFETT, RENE L. LATIOLAIS, RICHARD C. ADKERSON and HENRY A.
MILLER, and each of them acting individually, his true and lawful
attorney-in-fact with power to act without the others and with
full power of substitution and resubstitution, to execute a
Registration Statement of the Company and any of the Company's
wholly-owned subsidiaries on Form S-3 (or on such other form as
may be determined to be applicable) providing for the
registration under the Securities Act of 1933, as amended, of
common stock (including Class A Common Stock and Class B Common
Stock), debt warrants, equity, warrants, preferred stock, debt
securities, guarantees and of other securities, if any, into
which such common stock, preferred stock or debt securities may
be converted or exchanged, and any amendment or amendments to
such Registration Statement, and to file same with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorneys,
and each of them, full power and authority to do and perform each
and every act and thing whatsoever that such attorney or
attorneys may deem necessary or advisable to carry out fully the
intent of the foregoing as the undersigned might or could do
personally or in the capacity or capacities as aforesaid, hereby
ratifying and confirming all acts and things that such attorney
or attorneys may do or cause to be done by virtue of this Power
of Attorney.
EXECUTED this 19th day of April, 1996.
/s/ J. Taylor Wharton
______________________
J. Taylor Wharton
<PAGE>
POWER OF ATTORNEY
BE IT KNOWN, that the undersigned, in his capacity or
capacities as an officer or a member of the Board of Directors of
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the
"Company"), does hereby make, constitute and appoint JAMES R.
MOFFETT, RENE L. LATIOLAIS, RICHARD C. ADKERSON and HENRY A.
MILLER, and each of them acting individually, his true and lawful
attorney-in-fact with power to act without the others and with
full power of substitution and resubstitution, to execute a
Registration Statement of the Company and any of the Company's
wholly-owned subsidiaries on Form S-3 (or on such other form as
may be determined to be applicable) providing for the
registration under the Securities Act of 1933, as amended, of
common stock (including Class A Common Stock and Class B Common
Stock), debt warrants, equity, warrants, preferred stock, debt
securities, guarantees and of other securities, if any, into
which such common stock, preferred stock or debt securities may
be converted or exchanged, and any amendment or amendments to
such Registration Statement, and to file same with all exhibits
thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to such attorneys,
and each of them, full power and authority to do and perform each
and every act and thing whatsoever that such attorney or
attorneys may deem necessary or advisable to carry out fully the
intent of the foregoing as the undersigned might or could do
personally or in the capacity or capacities as aforesaid, hereby
ratifying and confirming all acts and things that such attorney
or attorneys may do or cause to be done by virtue of this Power
of Attorney.
EXECUTED this 19th day of April, 1996.
/s/ Ward W. Woods, Jr.
_______________________
Ward W. Woods, Jr.
