SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
November 13, 1996
FREEPORT-McMoRan COPPER & GOLD INC.
(Exact name of registrant as specified in its charter)
Delaware 1-9916 72-2480931
State or other jurisdiction (Commission File (I.R.S. Employer
of incorporation) Number) Identification No.)
1615 Poydras Street, New Orleans, Louisiana 70112
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (504) 582-4000
<PAGE>
Item 5. Other Events
On November 13, 1996, Freeport-McMoRan Copper & Gold
Inc. (the "Company") entered into an Underwriting Agreement
with UBS Securities LLC, Chase Securities Inc. and CS First
Boston Corporation (a copy of such Underwriting Agreement is
included as Exhibit 1.1 to this Form 8-K) for the sale of
$200,000,000 aggregate principal amount of 7.50% Senior
Notes due 2006 in the form of a registered global security
(the "2006 Notes") and $250,000,000 aggregate principal
amount of 7.20% Senior Notes due 2026 in the form of
registered global securities (the "2026 Notes," and together
with the 2006 Notes, the "Senior Notes"). The Senior Notes
are a portion of the Debt Securities previously registered
by the Company for offering on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act of 1933, as
amended (the "Act"). The Senior Notes will be $450,000,000
in principal amount of Debt Securities registered under
Registration No. 333-02699, which became effective on May
24, 1996.
The Senior Notes are to be issued and sold under the
terms of the Senior Indenture dated as of November 15, 1996
between the Company and The Chase Manhattan Bank, as
supplemented by the First Supplemental Indenture to be dated
as of November 18, 1996, which will set forth the terms and
form of the Senior Notes (the form of the Supplemental
Indenture is included as Exhibit 4.1 to this Form 8-K).
Item 7. Financial Statements and Exhibits.
The exhibits set forth below are filed herewith.
Exhibits 1.1, 4.1, 4.2 and 23.1 relate to the Registrant's
Registration Statement on Form S-3, Registration Statement
No. 333-02699, and Exhibit 23.1 relates to the Registrant's
Registration Statements on Form S-3, Registration Nos. 33-
52503, 33-66098, 33-63376 and 33-45787.
1.1 Underwriting Agreement dated November 13, 1996 among
the Company and UBS Securities LLC, Chase Securities Inc.
and CS First Boston Corporation providing for the sale of
the Senior Notes.
4.1 Senior Indenture dated as of November 15, 1996 from
Freeport-McMoRan Copper & Gold Inc. to The Chase Manhattan
Bank, as Trustee.
4.2 Form of First Supplemental Indenture dated as of
November 18, 1996 from Freeport-McMoRan Copper & Gold Inc.
to The Chase Manhattan Bank, as Trustee providing for the
issuance of the Senior Notes and supplementing the Senior
Indenture dated November 15, 1996 from the Company to such
Trustee, providing for the issuance of Debt Securities.
23.1 Consent of Arthur Andersen LLP dated November 13,
1996.
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned hereunto duly
authorized.
FREEPORT-McMoRan COPPER & GOLD INC.
By: /s/ Michael A. Weaver
____________________________
Michael A. Weaver
Dated: November 15, 1996. Controller-Financial Reporting
$450,000,000
FREEPORT-McMoRan COPPER & GOLD INC.
$200,000,000
7.50% Senior Notes Due 2006
$250,000,000
7.20% Senior Notes Due 2026
_______________
Underwriting Agreement
November 13, 1996
UBS SECURITIES LLC
CHASE SECURITIES INC.
CS FIRST BOSTON CORPORATION
c/o UBS Securities LLC
299 Park Avenue
New York, New York 10171
Ladies and Gentlemen:
Freeport-McMoRan Copper & Gold Inc., a Delaware
corporation ("FCX"), proposes, subject to the terms and
conditions stated herein, to issue and sell to the
underwriters named in Schedule I hereto (the "Underwriters")
$200,000,000 aggregate principal amount of its 7.50% Senior
Notes due November 15, 2006 (the "2006 Notes") and
$250,000,000 aggregate principal amount of its 7.20% Senior
Notes due November 15, 2026 (the "2026 Notes", and together
with the 2006 Notes, the "Senior Notes" or the "Securities")
to be issued under an indenture, dated as of November 14,
1996 (the "Indenture"), between FCX and The Chase Manhattan
Bank, as Trustee.
FCX has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on
Form S-3 (File No. 333-02699) and pre-effective amendment
no. 1 thereto for the registration of, among other things,
the Securities under the Securities Act of 1933, as amended
(the "1933 Act") and the offering thereof from time to time
in accordance with Rule 415 thereunder. Such registration
statement (as so amended, if applicable) has been declared
effective by the Commission, and the Indenture has been duly
qualified under the Trust Indenture Act of 1939, as amended
(the "1939 Act"). Such registration statement (as so
amended, if applicable) is referred to herein as the
"Registration Statement"; and the final prospectus and the
final prospectus supplement relating to the offering of the
Securities, in the form first furnished to the Underwriters
by FCX for use in connection with the offering of the
Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the
"Registration Statement" and the "Prospectus" shall also be
deemed to include all documents incorporated therein by
reference pursuant to the Securities Exchange Act of 1934,
as amended (the "1934 Act"). A "Preliminary Prospectus"
shall be deemed to refer to any prospectus and any
prospectus supplement, whether or not filed as part of the
Registration Statement as originally filed or as part of any
amendment thereto used before the Registration Statement
became effective and any prospectus and any prospectus
supplement, that omitted information to be included upon
pricing in a form of prospectus filed with the Commission
pursuant to Rule 424(b) of the rules and regulations of the
Commission that was used after such effectiveness and prior
to the execution and delivery of this Agreement. For
purposes of this Underwriting Agreement, all references to
the Registration Statement, Preliminary Prospectus,
Prospectus or any amendment or supplement thereto shall be
deemed to include any copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR").
All references in this Underwriting Agreement to
financial statements and schedules and other information
which is "contained," "included" or "stated" (or other
references of like import) in the Registration Statement,
Preliminary Prospectus, Prospectus or any amendment or
supplement thereto shall be deemed to mean and include all
such financial statements and schedules and other
information which is incorporated by reference in the
Registration Statement, Preliminary Prospectus, Prospectus
or any amendment or supplement thereto, as the case may be;
and all references in this Underwriting Agreement to
amendments or supplements to the Registration Statement,
Preliminary Prospectus or Prospectus shall be deemed to mean
and include the filing of any document under the 1934 Act
which is incorporated by reference in the Registration
Statement, Preliminary Prospectus or Prospectus, as the case
may be.
1. (a) FCX represents and warrants to, and
agrees with, each of the several Underwriters, as of the
date hereof, and as of the Closing Date (as defined below),
as follows:
(i) FCX meets the requirements for use of Form S-3
under the 1933 Act. The Registration Statement has
become effective under the 1933 Act, and no stop order
suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act, and no
proceedings for that purpose have been instituted or,
to the knowledge of FCX, are contemplated by the
Commission, and any request on the part of the
Commission for additional information has been complied
with. In addition, the Indenture has been duly
qualified under the 1939 Act.
Each part of the Registration Statement, when
such part became or becomes effective, and the
Prospectus, and any amendment or supplement thereto, on
the date of filing thereof with the Commission and on
the Closing Date (as hereinafter defined), conformed or
will conform in all material respects with the
requirements of the 1933 Act, the 1939 Act and the
rules and regulations of the Commission thereunder;
each part of the Registration Statement, when such part
became or becomes effective, did not or will not
contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein
or necessary to make the statements therein not
misleading; the Prospectus and any amendment or
supplement thereto, on the date of filing thereof with
the Commission and on the Closing Date, did not or will
not include an untrue statement of a material fact or
omit to state a material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading; provided
that no representation or warranty is made as to
information contained in or omitted from the
Registration Statement, Prospectus or any amendment or
supplement thereto in reliance upon and in conformity
with written information furnished to FCX by any
Underwriter specifically for inclusion therein.
Each Prospectus delivered to the Underwriters
for use in connection with the offering of the
Securities will, at the time of such delivery, be
identical to any electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T of the
rules and regulations of the Commission.
(ii) The documents incorporated or to be
incorporated by reference in the Registration
Statement, Prospectus or any amendment or supplement
thereto, as described under "Incorporation of Certain
Documents by Reference" in the Prospectus, when they
became or become effective under the 1933 Act or were
or are filed with the Commission under the 1934 Act, as
the case may be, conformed or will conform in all
material respects with the requirements of the 1933 Act
or the 1934 Act, as applicable, and the rules and
regulations of the Commission thereunder; and, when
read together with the other information in the
Prospectus, at the date of the Prospectus and at the
Closing Date, did not or will not include an untrue
statement of a material fact or omit to state a
material fact necessary to make the statements therein,
in the light of the circumstances under which they were
made, not misleading.
(iii) The Senior Notes have been duly authorized
and, when issued and authenticated by the Trustee in
accordance with the terms of the Indenture and
delivered pursuant to this Agreement, will have been
duly executed, authenticated, issued and delivered by
FCX and will be entitled to the benefits of the
Indenture; the Indenture has been duly authorized by
FCX and, when executed and delivered in accordance with
its terms, will have been validly executed and
delivered by FCX and will have been duly qualified
under the 1939 Act; and the Senior Notes and the
Indenture will constitute valid and legally binding
obligations of FCX, enforceable in accordance with
their respective terms, subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent
transfer and similar laws of general applicability
relating to or affecting creditors' rights and to
general equity principles (regardless of whether such
enforceability is considered in a proceeding in equity
or at law).
(iv) The Indenture and the Securities will
conform in all material respects to the descriptions
thereof contained in the Prospectus.
(v) The statements in the Prospectus under the
caption "Description of the Senior Notes," "Description
of Debt Securities and Guarantees," "Description of
Preferred Stock," "Description of Depositary Shares,"
and "Description of Warrants," insofar as such
statements constitute summaries of the documents and
matters referred to therein, fairly and accurately
present the information called for with respect to such
documents and matters.
(vi) Except as set forth in the Prospectus, there
is not pending or, to the knowledge of FCX, threatened,
any action, suit or proceeding to which FCX, P.T.
Freeport Indonesia Company, a limited liability company
organized under the laws of Indonesia and domesticated
in Delaware ("PT-FI"), Eastern Mining Company, Inc., a
Delaware corporation ("EMC"), Atlantic Copper Holding,
S.A., a limited liability company organized under the
laws of Spain ("Atlantic"), is a party before or by any
court or governmental agency or body, which could
reasonably be expected to result in any material
adverse change in the condition (financial or other),
business, prospects, net worth or results of operations
of FCX and its subsidiaries taken as a whole, or would
reasonably be expected to materially and adversely
affect the properties or assets thereof, taken as a
whole.
(vii) This Agreement has been duly authorized,
executed and delivered by FCX.
(viii) FCX will apply the net proceeds from the
sale of the Securities as set forth in the Prospectus
under the caption "Use of Proceeds".
(ix) There are no contracts or documents of FCX,
PT-FI, EMC, Atlantic or FCX Finance Company B.V., a
private company with limited liability incorporated
under the laws of the Kingdom of the Netherlands ("FCX
Finance"), that are required to be filed as exhibits to
the Registration Statement or to any of the documents
incorporated by reference therein by the 1933 Act, the
1934 Act or the rules and regulations of the Commission
thereunder that have not been so filed.
(x) The issuance and delivery of the Securities,
the execution and delivery of this Agreement and the
Indenture by FCX, the consummation by FCX of the
transactions herein and therein contemplated, the
compliance by FCX with the terms hereof and thereof and
the application of the proceeds of the issuance of the
Securities as described in the Prospectus under the
caption "Use of Proceeds" do not and will not conflict
with, or result in a breach or violation of, any of the
terms or provisions of, or constitute a default under,
the Certificate of Incorporation or By-laws, as amended
(or analogous documents), of FCX, PT-FI, EMC or
Atlantic or the Certificate of Domestication of PT-FI,
the Credit Agreement, dated as of June 30, 1995 (the
"FCX Bank Credit Facility"), among FCX, PT-FI and the
banks named therein, as amended, and the Composite
Credit Agreement, dated as of July 17, 1995 (the "PT-FI
Bank Credit Facility", and together with the FCX Bank
Credit Facility, the "Credit Facilities"), among PT-FI,
FCX and the banks named therein, as amended, or any
indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which FCX, PT-FI, EMC
or Atlantic is a party or by which any of their
respective properties or assets are bound, or any
applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality
or court, domestic or foreign, having jurisdiction over
FCX, PT-FI, EMC, Atlantic or any of their respective
properties or assets (other than any such conflict,
breach, violation or default which, individually or in
the aggregate, would not have a material adverse effect
on the condition (financial or other), business,
prospects, net worth or results of operations of FCX
and its subsidiaries taken as a whole); and no consent,
approval, authorization, order, registration or
qualification of or with any government, governmental
instrumentality or court, domestic or foreign, is
required for the valid authorization by FCX of the
Senior Notes, the issuance and delivery of the Senior
Notes, the valid authorization, execution, delivery and
performance by FCX of this Agreement and the Indenture,
the consummation by FCX of the transactions
contemplated by this Agreement and the Indenture, or
the application of the proceeds of the issuance of the
Securities as described in the Prospectus under the
caption "Use of Proceeds," except such consents,
approvals, authorizations, orders, registrations,
filings or qualifications as have been obtained or made
under the 1933 Act and the securities or Blue Sky laws
of the various states in connection with the purchase
by the Underwriters and distribution of the Securities
as described in the Prospectus; and provided that PT-FI
must register any loans from FCX with the Bank of
Indonesia or such loans may become subject to currency
exchange restrictions.
(xi) FCX is not an open-end investment company,
unit investment trust or face-amount certificate
company that is or is required to be registered under
Section 8 of the United States Investment Company Act
of 1940, as amended (the "Investment Company Act"), nor
is it a closed-end investment company required to be
registered, but not registered, thereunder; and FCX is
not and, after giving effect to the offering and sale
of the Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment
Company Act.
(xii) The consolidated financial statements of
FCX included or incorporated by reference in the
Registration Statement and the Prospectus present
fairly the consolidated financial position of FCX and
its consolidated subsidiaries as at the dates indicated
and the consolidated results of operations and cash
flows of such entities for the periods specified and
have been prepared in conformity with generally
accepted accounting principles applied on a consistent
basis during the periods involved, except as indicated
therein.
(xiii) FCX does not have any subsidiaries that
would constitute significant subsidiaries within the
meaning of Rule 405 under the 1933 Act other than PT-FI
and Atlantic.
(xiv) Each of FCX, EMC and Atlantic has been duly
incorporated and is validly existing as a corporation
in good standing under the laws of its jurisdiction of
organization or incorporation; PT-FI is a limited
liability company duly organized under the laws of the
Republic of Indonesia and PT-FI has been domesticated
in the State of Delaware and is in good standing under
the laws of the State of Delaware; each of FCX, PT-FI,
EMC, Atlantic and FCX Finance has full power and
authority (corporate and other) to own its properties
and conduct its business as described in the
Registration Statement, Prospectus and any amendment or
supplement thereto; and each of FCX, PT-FI, EMC,
Atlantic and FCX Finance has been duly qualified as a
foreign corporation for the transaction of business and
is in good standing to the extent applicable under the
laws of each other jurisdiction (if any) in which it
owns or leases properties or conducts any business so
as to require such qualification, except where the
failure to be so qualified or in good standing,
considering all such cases in the aggregate, does not
involve a material risk to the business, properties,
financial position or results of operations of FCX and
its subsidiaries taken as a whole.
(xv) FCX has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares
of capital stock of FCX have been duly and validly
authorized and issued and are fully paid and non-
assessable.
(xvi) Except as contemplated in the Prospectus,
subsequent to the respective dates as of which
information is given in the Registration Statement and
the Prospectus, none of FCX, PT-FI, EMC or Atlantic has
incurred any liabilities or obligations, direct or
contingent, or entered into any transactions, not in
the ordinary course of business, that are material to
FCX and its subsidiaries taken as a whole, and there
has not been any material change in the capital stock
(changes (x) resulting from repurchases by FCX of its
Class A Common Stock, par value $0.10 per share, and
its Class B Common Stock, par value $0.10 per share
(the "FCX Common Stock"), in an amount not exceeding
the shares of FCX Common Stock described in the
Prospectus as having been repurchased through the date
as of which such information is given in the Prospectus
or (y) in connection with the conversion or exchange of
any security of FCX outstanding on the date as of which
such information is given in the Prospectus shall not
constitute material changes in capital stock for
purposes of this clause (xvi)) or any increase in
short-term debt or long-term debt of FCX and its
subsidiaries (other than borrowings under the Credit
Facilities as set forth in the Prospectus) or any
material adverse change in the prospects, or any
material adverse change, or any development involving a
prospective material adverse change, in the condition
(financial or other), business, net worth or results of
operations of FCX and its subsidiaries taken as a
whole.
(xvii) Neither FCX nor any of its affiliates does
business with the government of Cuba or with any person
or affiliate located in Cuba within the meaning of
Section 517.075, Florida Statutes.
2. On the basis of the representations,
warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, FCX agrees to
issue and sell to the Underwriters, and the Underwriters
agree, severally and not jointly, to purchase from FCX, (a)
at a purchase price of 98.825% of the principal amount
thereof plus accrued interest from November 18, 1996 to the
Closing Date, the respective principal amounts of 2006 Notes
set forth opposite the names of the Underwriters in
Schedule I hereto and (b) at a purchase price of 99.268% of
the principal amount thereof plus accrued interest from
November 18, 1996 to the Closing Date, the respective
principal amounts of 2026 Notes set forth opposite the names
of the Underwriters in Schedule I hereto. FCX hereby
confirms to the Underwriters that, within the preceding
twelve months, neither FCX nor any other person acting on
its behalf has offered or sold to any person any Securities,
or any securities of the same or a similar class as the
Securities, other than Securities offered or sold to the
Underwriters.
3. FCX will deliver the Securities to you,
against payment of the purchase price by wire transfer of
immediately available funds to such account or accounts as
FCX shall specify prior to the Closing Date (as defined
below) at the office of Sullivan & Cromwell, 125 Broad
Street, New York, New York at 9:30 A.M., New York time,
on November 18, 1996, or at such other time thereafter as
you and FCX determine, such time being herein referred to as
the "Closing Date". A meeting will be held at the offices
of Sullivan & Cromwell on the business day next preceding
the Closing Date, at which meeting final drafts of the
documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. Except
as set forth in the following sentence, all of the
Securities to be purchased by each Underwriter hereunder
will be represented by one or more certificates in
definitive form, in such authorized denominations as you may
request upon at least 48 hours prior written notice to FCX
and registered in the name of Cede & Co., as nominee for The
Depository Trust Company ("DTC"), which certificates will be
deposited by or on behalf of FCX with DTC or its designated
custodian. Such Securities, if any, as the Underwriters may
request upon at least 48 hours' prior written notice to FCX
(such request to include the authorized denominations and
the names in which they are to be registered), shall be
delivered in definitive certificated form by or on behalf of
FCX on the Closing Date at the office of UBS Securities LLC
for the account of certain of the Underwriters.
4. It is understood that the several
Underwriters propose to offer the Securities for sale to the
public as set forth in the Prospectus.
5. FCX agrees with each of the Underwriters
that:
(a) FCX will prepare the Prospectus in a form
approved by you.
(b) FCX, subject to Section 5(c), will comply with
the requirements of Rule 430A and/or Rule 434 of the
rules and regulations under the 1933 Act, if and as
applicable, and will notify the Underwriters
immediately, and confirm the notice in writing, of (i)
the effectiveness of any post-effective amendment to
the Registration Statement or the filing of any
supplement or amendment to the Prospectus, (ii) the
receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the
Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and
(iv) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the
use of the Prospectus, or of the suspension of the
qualification of the Securities for offering or sale in
any jurisdiction, or of the initiation or threatening
of any proceedings for any of such purposes. FCX will
promptly effect the filings necessary pursuant to Rule
424 and will take such steps as it deems necessary to
ascertain promptly whether the Prospectus transmitted
for filing under Rule 424 was received for filing by
the Commission and, in the event that it was not, it
will promptly file the Prospectus. FCX will make every
reasonable effort to prevent the issuance of any stop
order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(c) FCX will give the Underwriters notice of its
intention to file or prepare any amendment to the
Registration Statement or any amendment, supplement or
revision to either the prospectus included in the
Registration Statement at the time it became effective
or to the Prospectus, whether pursuant to the 1933 Act,
the 1934 Act or otherwise, will furnish the
Underwriters with copies of any such documents prior to
such proposed filing or use, as the case may be, and
will not file or use any such document to which the
Underwriters (or counsel for the Underwriters) shall
reasonably object by notice to FCX after a reasonable
period to review, which shall not in any case be longer
than three business days after receipt of such copies;
this Section 5(c) applies to any such amendment,
supplement or revision to that extent that it relates
in any way to the Securities or is filed or prepared
during any period in which the Securities are being
distributed.
(d) FCX will comply with the 1933 Act and the 1934
Act and the rules and regulations of the Commission
thereunder so as to permit the completion of the
distribution of the Securities as contemplated in this
Agreement, in the Registration Statement and in the
Prospectus. If, at any time when the Prospectus is
required by the 1933 Act or the 1934 Act to be
delivered in connection with sales of the Securities,
any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of
counsel for the Underwriters or for FCX, to amend the
Registration Statement in order that the Registration
Statement will not contain an untrue statement of a
material fact or omit to state a material fact required
to be stated therein or necessary to make the
statements therein not misleading or to amend or
supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact
or omit to state a material fact necessary in order to
make the statements therein not misleading in the light
of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary,
in the opinion of such counsel, at any such time to
amend the Registration Statement or amend or supplement
the Prospectus in order to comply with the requirements
of the 1933 Act or the 1934 Act or the rules and
regulations of the Commission thereunder, FCX will
notify you of such event or condition and will promptly
prepare and file with the Commission, subject to
Section 5(c), at its own expense, such amendment or
supplement as may be necessary to correct such
statement or omission or to make the Registration
Statement or the Prospectus comply with such
requirements, and FCX will furnish to the Underwriters,
without charge, such number of copies of such amendment
or supplement as the Underwriters may reasonably
request. Neither your consent to, nor the
Underwriters' delivery of, any such amendment or
supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(e) FCX shall timely file such reports pursuant to
the 1934 Act as are necessary in order to make
generally available to its securityholders as soon as
practicable an earnings statement for the purposes of,
and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(f) FCX has furnished or will deliver to the
Underwriters and counsel for the Underwriters, without
charge, as soon as available, signed copies of the
Registration Statement as originally filed and of each
amendment thereto (including exhibits filed therewith
or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference
therein) and signed copies of all consents and
certificates of experts, and will also deliver to the
Underwriters, without charge, a conformed copy of the
Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the
Underwriters. Copies of the Registration Statement and
each amendment thereto furnished to the Underwriters
will be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation
S-T.
(g) FCX will furnish to each Underwriter, without
charge, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934
Act, such number of copies of the Prospectus as such
Underwriter may reasonably request. The Prospectus and
any amendments or supplements thereto furnished to the
Underwriters will be identical to any electronically
transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by
Regulation S-T of the rules and regulations of the
Commission.
(h) FCX will arrange for the qualification of the
Senior Notes for sale and the determination of their
eligibility for investment under the laws of such
jurisdictions as you designate and will continue such
qualifications in effect so long as required for the
completion of the distribution of the Securities by the
Underwriters; provided that in no event shall FCX be
obligated to qualify to do business in any jurisdiction
where it is not so qualified or to take any other
action which would subject it to service of process in
suits, other than those arising from the offering or
sale of securities in any jurisdiction where it is not
now so subject.
(i) During the period beginning on the date of the
Prospectus and ending on the date that is five years
thereafter (or such earlier date as there shall no
longer be any Securities outstanding under the
Indenture), FCX will furnish to you (i) as soon as
available, a copy of each report or definitive proxy
statement of FCX filed with the Commission under the
1934 Act or mailed to stockholders, and (ii) from time
to time, such other information concerning FCX as you
may reasonably request.
(j) During the period of three years after the
Closing Date, FCX will not be or become an open-end
investment company, unit investment trust or face-
amount certificate company that is or is required to be
registered under Section 8 of the Investment Company
Act, and is not, and will not be or become, a closed-
end investment company required to be registered, but
not registered, under the Investment Company Act.
(k) FCX, whether or not the transactions
contemplated hereunder are consummated or this
Agreement is terminated, will pay or cause to be paid
all expenses incident to the performance of its
obligations under this Agreement, including (i) the
preparation, printing, filing and distribution of the
Registration Statement and Prospectus and any
amendments or supplements thereto, (ii) the
preparation, printing and distribution of this
Agreement, any agreement among the Underwriters, the
Securities, the Indenture and any Blue Sky memoranda,
(iii) the issuance and delivery of the Securities to
you, (iv) the fees and disbursements of FCX's counsel
and accountants and other experts, (v) the expenses of
qualifying the Securities under state securities laws
in accordance with the provisions of Section 5(h),
including filing fees and reasonable fees and disburse-
ments of your counsel in connection therewith and in
connection with any Blue Sky memoranda, (vi) the fees
and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee, and (vii) any
filing fee of the National Association of Securities
Dealers, Inc. relating to the Securities. If the sale
of the Securities provided for herein is not
consummated by reason of any failure, refusal or
inability on the part of FCX to perform any agreement
on its part to be performed, or because any other
condition of your obligations hereunder (other than the
conditions specified in Sections 6(c)(iv) or (v))
required to be fulfilled by FCX is not fulfilled, FCX
will reimburse you for all reasonable out-of-pocket
disbursements (including reasonable fees and disburse-
ments of counsel) incurred by you in connection with
your investigation, preparing to market and marketing
the Securities or in contemplation of performing your
obligations hereunder. FCX shall not in any event be
liable to you for loss of anticipated profits from the
transactions covered by this Agreement.
(l) During the period beginning from the date
hereof and continuing to and including the Closing
Date, FCX will not offer, sell, contract to sell or
otherwise dispose of any debt securities of FCX that
mature more than one year after the Closing Date and
which are substantially similar to the Securities,
without the prior written consent of the Underwriters.
(m) FCX shall use the proceeds of the offering of
the Securities in the manner specified in the
Prospectus under "Use of Proceeds."
6. The obligations of the several Underwriters
to purchase and pay for the Securities will be subject to
the accuracy of the representations and warranties on the
part of FCX herein, to the accuracy of the statements of
officers of FCX made in any certificate or other writing
pursuant to the provisions hereof, to the performance by FCX
of its obligations hereunder and to the following additional
conditions precedent:
(a) The Registration Statement shall have become
effective under the 1933 Act, and no stop order
suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and
no proceedings for that purpose shall have been
initiated or be pending or threatened by the
Commission, and any request on the part of the
Commission for additional information shall have been
complied with to the reasonable satisfaction of the
Underwriters. A prospectus containing information
relating to the Securities, the specific method of
distribution and similar matters shall have been filed
with the Commission in accordance with Rule 424(b)(1),
(2), (3), (4) or (5) of the rules and regulations of
the Commission, as applicable (or any required post-
effective amendment providing such information shall
have been filed and declared effective in accordance
with the requirements of Rule 430A), or, if FCX has
elected to rely upon Rule 434 under the 1933 Act, a
term sheet including the Rule 434 Information shall
have been filed with the Commission in accordance with
Rule 424(b)(7).
(b) You shall have received a letter, dated the
date of this Agreement, of Arthur Andersen LLP
confirming that they are independent public accountants
with respect to FCX within the meaning of the 1933 Act
and the applicable published rules and regulations
thereunder and stating in effect that:
(i) in their opinion the financial state-
ments and schedules of FCX examined by them and
included in the Registration Statement comply in
form in all material respects with the applicable
accounting requirements of the 1933 Act and the
related published rules and regulations
thereunder;
(ii) they have made a review in accordance
with standards established by the American
Institute of Certified Public Accountants of the
unaudited condensed consolidated statements of
income, consolidated balance sheets and
consolidated statements of cash flows included in
the Prospectus as indicated in their reports
thereon copies of which have been separately
furnished to you; and on the basis of specified
procedures including inquiries of officials of the
Company who have responsibility for financial and
accounting matters regarding whether the unaudited
condensed consolidated statements of income,
balance sheets and statements of cash flows
included in the Registration Statement comply as
to form in all material respects with the
applicable accounting requirements of the Act and
the related published rules and regulations,
nothing came to their attention that caused them
to believe that the unaudited condensed
consolidated financial statements do not comply as
to form in all material respects with the
applicable accounting requirements of the Act and
the Exchange Act and the related published rules
and regulations or that any material modifications
should be made to the unaudited condensed
consolidated financial statements, for them to be
in conformity with generally accepted accounting
principles;
(iii) on the basis of a reading of the
latest available interim financial statements of
FCX, inquiries of officials of FCX who have
responsibility for financial and accounting
matters and other specified procedures, nothing
came to their attention that caused them to
believe that:
(A) at a specified date not more than
five days prior to the date of this
Agreement, there was any change in the
capital stock or any increase in short-term
indebtedness or long-term debt of FCX and its
subsidiaries consolidated or, at the date of
the latest available balance sheet read by
such accountants, there was any decrease in
consolidated net current assets, net assets
or stockholders' equity, as compared with
amounts shown on the latest balance sheet
included or incorporated by reference in the
Prospectus; or
(B) for the period from the closing date
of the latest income statement included in
the Prospectus to a subsequent specified date
not more than five days prior to the date of
this Agreement, there were any decreases, as
compared with the corresponding period of the
previous year, in consolidated net sales or
net operating income, or in the total or per-
share amounts of consolidated income before
extraordinary items or net income or in the
ratio of earnings to fixed charges;
except in all cases set forth in clauses (A) and
(B) above for changes, increases or decreases
which the Registration Statement, the Prospectus
and any amendment or supplement thereto disclose
have occurred or may occur or which are described
in such letter; and
(iv) they have compared specified dollar
amounts (or percentages derived from such dollar
amounts) and other financial information contained
in the Registration Statement (to the extent that
such dollar amounts, percentages and other
financial information are derived from the general
accounting records of FCX and its subsidiaries
subject to the internal controls of FCX's
accounting system or are derived directly from
such records by analysis or computation) with the
results obtained from inquiries, a reading of such
general accounting records and other procedures
specified in such letter and have found such
dollar amounts, percentages and other financial
information to be in agreement with such results,
except as otherwise specified in such letter.
All financial statements and schedules included in
material incorporated by reference into the
Registration Statement or the Prospectus shall be
deemed included in such documents for purposes of this
subsection.
(c) Subsequent to the execution and delivery of
this Agreement, there shall not have occurred (i) any
material change, on a consolidated basis, in the
capital stock (changes (x) resulting from repurchases
by FCX of shares of the FCX Common Stock in an amount
not exceeding the shares described in the Prospectus as
having been repurchased through the date as which such
information is given in the Prospectus or (y) in
connection with the conversion or exchange of any
security of FCX outstanding on the date as of which
such information is given in the Prospectus shall not
constitute material changes in capital stock for
purposes of this Section 6(c)), short-term debt or
long-term debt of FCX and its subsidiaries (other than
borrowings under the Credit Facilities as set forth in
the Prospectus) (ii) any change, or any development
involving a prospective change, in or affecting
particularly the business or properties of FCX or its
subsidiaries which, in the judgment of a majority in
interest of the Underwriters, including you, materially
impairs the investment quality of the Securities;
(iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange or
the American Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension
of trading of any securities of FCX on any exchange or
in the over-the-counter market; (iv) any banking
moratorium declared by Federal or New York authorities;
or (v) any outbreak or escalation of major hostilities
in which the United States is involved, any declaration
of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment
of a majority in interest of the Underwriters,
including you, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion
of the sale of and payment for the Securities.
(d) You shall have received an opinion, dated the
Closing Date, of Jones, Walker, Waechter, Poitevant,
Carrere & Denegre, L.L.P., special counsel for FCX, to
the effect that:
(i) FCX has been duly incorporated and is an
existing corporation in good standing under the
laws of the State of Delaware and PT-FI has been
domesticated and is in good standing under the
laws of the State of Delaware;
(ii) The Indenture has been duly authorized,
executed and delivered by FCX and has been duly
qualified under the 1939 Act; the Senior Notes
have been duly authorized, executed, issued and
delivered by FCX and authenticated by the Trustee;
and the Indenture and the Senior Notes constitute
valid and binding obligations of FCX, enforceable
in accordance with their respective terms, subject
to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of
general applicability relating to or affecting
creditors' rights and to general equity
principles;
(iii) The statements in the Registration
Statement, Prospectus and any amendment or
supplement thereto under the captions "Description
of the Senior Notes", Description of Debt
Securities and Guarantees," "Description of
Preferred Stock," "Description of Depositary
Shares" and "Description of Warrants", insofar as
such statements constitute summaries of the
documents and matters referred to therein, fairly
and accurately present the information called for
with respect to such documents and matters and the
Securities and the Indenture conform in all
material respects to the descriptions thereof in
the Registration Statement, Prospectus and any
amendment or supplement thereto;
(iv) This Agreement has been duly
authorized, executed and delivered by FCX;
(v) The issuance and delivery of the Senior
Notes, the execution and delivery of this
Agreement and the Indenture by FCX, the
consummation by FCX of the transactions herein and
therein contemplated, and compliance by FCX with
the terms of this Agreement, the Indenture and the
Senior Notes will not result in a breach or
violation of any of the terms and provisions of,
or constitute a default under (a) the charter or
by-laws of FCX or PT-FI, or (b) to the best of
such counsel's knowledge, but without any
independent investigation, any federal securities
law of the United States, any law of the States of
Louisiana or New York or the Delaware General
Corporation Law, or of any order, writ, judgment,
decree, determination or award binding on FCX
(assuming compliance with all applicable state
securities and "blue sky" laws); and no consent,
approval, authorization or order of, or filing
with, any court or governmental agency or body is
required for the consummation of the transactions
contemplated by this Agreement, except such as
have been obtained under the 1933 Act and such as
may be required under state laws in connection
with the purchase and distribution of the Senior
Notes by the several Underwriters;
(vi) The Registration Statement has become
effective under the 1933 Act; the Prospectus has
been filed as required by the 1933 Act and the
rules and regulations of the Commission
thereunder; and to the best knowledge of such
counsel no stop order suspending the effectiveness
of the Registration Statement or order preventing
or suspending the use of any prospectus relating
to the Securities has been issued under the 1933
Act and no proceedings for that purpose have been
instituted or threatened;
(vii) Each part of the Registration
Statement, when such part became effective, and
the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the
Commission, complied as to form in all material
respects with the requirements of the 1933 Act,
the 1939 Act and the rules and regulations of the
Commission thereunder; and
(viii) FCX is not an open-end investment
company, unit investment trust or face-amount
certificate company that is or is required to be
registered under the Investment Company Act and is
not a close-end investment company that is
required to be registered under the Investment
Company Act.
In addition, such counsel shall state that they
have participated in conferences with officers and
representatives of FCX, representatives of the
independent accountants of FCX and representatives of
the Underwriters at which the contents of the
Registration Statement, Prospectus and any amendment or
supplement thereto were discussed and have reviewed the
information included therein and, between the date of
the Prospectus Supplement dated November 13, 1996 and
the Closing Date have reviewed certificates of certain
officers of FCX, certain opinions addressed to the
Underwriters and letters addressed to the Underwriters
from FCX's independent accountants and independent
mining engineers, and although such counsel have
undertaken no independent verification of the
information in the Registration Statement, Prospectus
and any amendment or supplement thereto (other than the
information referred to in Section 6(d)(iii) above), on
the basis of the foregoing, such counsel shall state
that they have no reason to believe that any part of
the Registration Statement, when such part became
effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading, or that the Prospectus and any
amendments or supplements thereto made by FCX prior to
the Closing Date contained as of its date or contains
as of the Closing Date an untrue statement of a
material fact or omitted or omits, as the case may be,
to state a material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading; it being
understood that such counsel need express no opinion as
to the financial statements or other financial data or
the information regarding reserves included or
incorporated by reference in any of such documents.
Such counsel may state that they do not assume
responsibility for the accuracy, completeness or
fairness of the statements contained in the
Registration Statement, Prospectus and any amendment or
supplement thereto (other than the information referred
to in Section 6(d)(iii) above).
Such counsel shall be entitled to state that such
opinion is limited to the Federal laws of the United
States, the laws of the State of New York and the State
of Louisiana and the General Corporation Law of the
State of Delaware.
(e) You shall have received an opinion, dated the
Closing Date, of Henry A. Miller, General Counsel of
FCX, to the effect that:
(i) Each of FCX and PT-FI has full power and
authority (corporate and other) to conduct its
business as described in the Registration
Statement, Prospectus and any amendment or
supplement thereto and is duly qualified to do
business in each jurisdiction in which it owns or
leases real property or in which the conduct of
its business requires such qualification except
where the failure to be so qualified, considering
all such cases in the aggregate, does not involve
a material risk to the business, properties,
financial position or results of operations of FCX
and its subsidiaries;
(ii) FCX's Annual Report on Form 10-K most
recently filed with the Commission and all
subsequent reports filed by FCX on or before the
date of such opinion pursuant to the 1934 Act were
timely filed with the Commission, and such
reports, when they were filed with the Commission,
complied as to form in all material respects with
the requirements of the 1934 Act and the rules and
regulations thereunder; and such counsel believes
that none of such documents, when such documents
were so filed, contained an untrue statement of a
material fact or omitted to state a material fact
necessary in order to make the statements therein,
in the light of the circumstances under which they
were made when such documents were so filed, not
misleading, it being understood that such counsel
need express no opinion as to the financial
statements or other financial data included in any
of the documents mentioned in this clause (ii);
(iii) The descriptions in the Registration
Statement, Prospectus and any amendment or
supplement thereto of statutes, legal and
governmental proceedings, contracts and other
documents are accurate and fairly present the
information shown; and such counsel does not know
of any statutes or legal or governmental
proceedings necessary to be described in the
Registration Statement, Prospectus or any
amendment or supplement thereto to make the
statements therein not misleading that are not
described in the manner necessary to make such
statements not misleading, or of any contracts or
documents of a character necessary to be described
in the Registration Statement, Prospectus or any
amendment or supplement thereto to make the
statements therein not misleading (or required to
be filed under the 1934 Act) that are not so
described therein or filed as required;
(iv) The performance of this Agreement, the
Indenture and the Senior Notes and the
consummation of the transactions herein and
therein contemplated will not result in a breach
or violation of any of the terms and provisions
of, or constitute a default under, the constituent
documents of FCX or PT-FI or any statute, any
agreement or instrument known to such counsel to
which FCX or PT-FI is a party or by which either
of them is bound or to which any of the property
of either of them is subject, or any order, rule
or regulation known to such counsel of any court
or governmental agency or body having jurisdiction
over FCX or PT-FI or any of their respective
properties; and no consent, approval,
authorization or order of, or filing with, any
governmental agency or body or any court is
required for the issuance and delivery of the
Senior Notes, the compliance by FCX or PT-FI, as
the case may be, with the terms thereof or the
consummation of the transactions contemplated by
this Agreement; and
(v) All the issued shares of capital stock
of PT-FI shown in the Registration Statement,
Prospectus and any amendment or supplement thereto
as beneficially owned by FCX have been duly and
validly authorized and issued and are fully paid
and non-assessable and are so owned subject to no
security interest, other encumbrance or adverse
claim.
(f) You shall have received the opinion, dated the
Closing Date, of Ali Budiardjo, Nugroho, Reksodiputro,
special Indonesian counsel for FCX, to the effect that:
(i) PT-FI has been duly organized and is an
existing corporation in good standing under the
laws of Indonesia;
(ii) The Contract of Work, dated
December 30, 1991, between the Ministry of Mines
of the Government of the Republic of Indonesia,
acting for such Government, and PT-FI (the
"Contract of Work"), has been duly authorized,
executed and delivered by and constitutes the
valid and binding obligation of the parties
thereto, is in full force and effect and is
enforceable in accordance with its terms;
(iii) Other than those already granted in or
pursuant to the Contract of Work and routine
authorizations, permissions, consents or approvals
(including approvals required under certain
routine administrative regulations), which are of
a minor nature and which are customarily granted
in due course after application, or the denial of
which would not materially adversely affect the
business, present or proposed, of PT-FI, no
registration with, or authorization or order of,
The Government of the Republic of Indonesia or to
any subdivision thereof is required to permit PT-
FI to carry out its operations, including those
described in the Registration Statement,
Prospectus and any amendment or supplement
thereto; to procure and import equipment and other
materials therefor; to export its products, or to
construct, equip, own, operate or maintain its
assets or business; however, as disclosed in the
Prospectus certain additional authorizations and
consents will be required in connection with
PT-FI's proposed mining and milling expansion; and
(iv) To the best of such counsel's knowledge
after due inquiry, other than routine tax audits
conducted in accordance with the terms of the
Contract of Work, there is no action, suit,
proceeding or investigation by or before any
Indonesian court or governmental authority pending
or threatened against or affecting PT-FI or any of
its properties or rights which, if determined
adversely to PT-FI, would in the aggregate have a
material adverse effect on its present or future
business or condition.
(g) You shall have received from Sullivan &
Cromwell, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the
validity of the Senior Notes, the Registration
Statement, Prospectus and any amendment or supplement
thereto, and other related matters as you may require,
and FCX shall have furnished to such counsel such
documents as they request for the purpose of enabling
them to pass upon such matters. Such counsel shall be
entitled to state that such opinion is limited to the
Federal laws of the United States, the laws of the
State of New York and the General Corporation Law of
the State of Delaware.
(h) You shall have received a certificate or
certificates, dated the Closing Date, of the Chairman
of the Board, the Vice Chairman of the Board, the
Executive Vice President, any Senior Vice-President or
any Vice-President, and the treasurer or a principal
financial or accounting officer, of FCX, in which such
officers, to the best of their knowledge after
reasonable investigation, shall state that the
representations and warranties of FCX in this Agreement
are true and correct, that FCX has complied with all
agreements and satisfied all conditions on its part to
be performed or satisfied hereunder at or prior to the
Closing Date, and that, subsequent to the date of the
most recent financial statements in the Registration
Statement, Prospectus and any amendment or supplement
thereto, there has been no material adverse change in
the financial position or results of operation of FCX
and its subsidiaries taken as a whole except as set
forth in or contemplated by the Registration Statement,
Prospectus and any amendment or supplement thereto or
as described in such certificate.
(i) You shall have received a letter, dated the
Closing Date, of Arthur Andersen LLP which meets the
requirements of subsection (b) of this Section, except
that the specified date referred to in such subsection
will be a date not more than five days prior to the
Closing Date for the purposes of this subsection.
(j) On or prior to the Closing Date the Securities
shall have been conditionally rated "BBB-" by Standard
& Poor's Corporation ("S&P"), "Ba1" by Moody's
Investors Services ("Moody's"), and "BBB-" by Fitch
Investors Service ("Fitch", and together with S&P and
Moody's, the "Rating Agencies"), such ratings to be
conditioned only upon such matters as you shall regard
as sufficiently certain to occur, and none of S&P,
Moody's or Fitch shall have withdrawn or qualified such
ratings.
(k) If any condition specified in this Section
shall not have been fulfilled when and as required to
be fulfilled, other than by reason of any default by
the Underwriters, such failure to fulfill a condition
may be waived by the Underwriters, or this Agreement
may be terminated by the Underwriters by notice to FCX
at any time at or prior to the Closing Date, and such
termination shall be without liability of any party to
any other party, except as provided in Sections 5(k)
and 7 hereof. The obligations of the Underwriters may
be terminated by the Underwriters, in their absolute
discretion, by notice given to and received by FCX
prior to delivery of any payment for the Securities,
if, prior to that time, any of the events described in
Section 6(c) have occurred.
7. (a) FCX will indemnify and hold harmless
each Underwriter and each person who controls each
Underwriter within the meaning of the 1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, joint or
several, to which such Underwriters may become subject,
under the 1933 Act or otherwise, arising out of any
untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement,
Preliminary Prospectus, Prospectus or any amendment or
supplement thereto, or the omission or alleged omission
therefrom of a material fact required to be stated
therein or necessary to make the statements therein not
misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, joint or
several, to which such Underwriters may become subject,
under the 1933 Act or otherwise, to the extent of the
aggregate amount paid in settlement of any litigation,
or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any
claim whatsoever based upon any untrue statement or
alleged untrue statement of a material fact contained
in the Registration Statement, Preliminary Prospectus,
Prospectus or any amendment or supplement thereto or
the omission or alleged omission therefrom of a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, if such settlement is effected with the
written consent of FCX, which consent shall not be
unreasonably withheld; and
(iii) against any and all expense whatsoever, as
incurred by each Underwriter (including, subject to
Section 7(c) hereof, the fees and disbursements of
counsel chosen by the Underwriters), reasonably
incurred in investigating, preparing or defending
against any litigation, or any investigation or
proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based
upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration
Statement, Preliminary Prospectus, Prospectus or any
amendment or supplement thereto, or the omission or
alleged omission therefrom of a material fact required
to be stated therein or necessary to make the
statements therein not misleading, to the extent that
any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not
apply to any loss, liability, claim, damage or expense to
the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to
FCX by any Underwriter through you expressly for use in the
Preliminary Prospectus or the Prospectus (or any amendment
or supplement thereto); and provided, further, that FCX
shall not be liable to any Underwriter under the indemnity
agreement in this Section 7(a) with respect to any
Preliminary Prospectus to the extent that any such loss,
claim, damage or liability of such Underwriter results from
the fact that such Underwriter sold Securities to a person
as to whom it shall be established that there was not sent
or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus or of the Prospectus as then
amended or supplemented (in either case excluding documents
incorporated therein by reference) in any case where such
delivery is required by the 1933 Act if FCX has previously
furnished copies thereof in sufficient quantity to such
Underwriter and the loss, claim, damage or liability of such
Underwriter results from an untrue statement or omission of
a material fact contained in the Preliminary Prospectus
which was corrected in the Prospectus or in the Offering
Circular as then amended or supplemented (in either case
excluding documents incorporated therein by reference).
(b) Each Underwriter agrees to indemnify and hold
harmless FCX and each person who controls FCX within the
meaning of the 1933 Act, to the same extent as the foregoing
indemnity from FCX to the Underwriters, but only to the
extent the related untrue statement or alleged untrue
statement or omission or alleged omission was made in the
related document referred to in the foregoing indemnity in
reliance upon and in conformity with written information
relating to such Underwriter furnished to FCX by such
Underwriter expressly for inclusion in the preparation of
the documents referred to in the foregoing indemnity.
(c) Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if
a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the
indemnifying party or parties in writing of the commencement
thereof; but the omission so to notify the indemnifying
party or parties shall not relieve it from any liability
that it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be
brought against any indemnified party, and it shall notify
the indemnifying party or parties of the commencement
thereof, the indemnifying party or parties shall be entitled
to participate in, and, to the extent that it shall elect,
jointly with any other indemnifying party similarly
notified, by written notice delivered to such indemnified
party promptly after receiving the aforesaid notice from
such indemnified party, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be
counsel to the indemnifying party); provided, however, that
if, in the judgment of such indemnified party, an actual or
potential conflict of interest exists where it is advisable
for such indemnified party to be represented by separate
counsel, the indemnified party shall have the right to
employ separate counsel in any such action, in which event
the fees and expenses of such separate counsel shall be
borne by the indemnifying party or parties. After notice
from the indemnifying party or parties to such indemnified
party of its election so to assume the defense thereof and
approval by the indemnified party of counsel, the indemni-
fying party or parties shall not be liable to such
indemnified party under such subsection for any legal or
other expenses subsequently incurred by such indemnified
party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party
or parties shall not be liable for the expenses of more than
one such separate counsel representing the indemnified
parties under subparagraph (a) of this Section 7 who are
parties to such action), (ii) the indemnifying party or
parties shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action
or (iii) the indemnifying party or parties have authorized
the employment of counsel for the indemnified party at the
expense of the indemnifying party or parties; and except
that, if clause (i) or (iii) is applicable, such liability
shall be only in respect of the counsel referred to in such
clause (i) or (iii). Each indemnified party, as the
condition of the indemnity agreements contained in Sections
7(a) and 7(b), shall use all reasonable efforts to cooperate
with the indemnifying party in the defense of any such
action or claim. No indemnifying party shall be liable for
any settlement for any such action effected without its
written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if
there be a final judgment in favor of the plaintiff of any
such action the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this
Section 7 is unavailable or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by FCX on the one
hand and the Underwriters on the other from the offering of
the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party
shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the
relative fault of FCX on the one hand and the Underwriters
on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits
received by FCX on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Securities
(before deducting expenses) received by FCX bear to the
total discounts received by the Underwriters, in each case
as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to
information supplied by FCX on the one hand or the
Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. FCX and the
Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (d) were to be
determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the
equitable considerations referred to above in this
subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or
defending against any such action or claim. Notwithstanding
the provisions of this subsection (d), no Underwriter shall
be required to contribute any amount in excess of the amount
by which the total price at which the Securities purchased
by it and resold to investors were offered to such investors
exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled
to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations
in this subsection (d) to contribute are several in
proportion to their respective purchase obligations and not
joint.
(e) All representations, warranties, and
agreements of FCX herein or in certificates or letters of
officers, delivered pursuant hereto, and the agreements of
the several Underwriters contained in this Section 7, shall
remain operative and in full force and effect regardless of
any termination of this Agreement or any investigation made
by or on behalf of FCX or any Underwriter or any controlling
person, and shall survive delivery of any Securities to the
Underwriters.
8. If any Underwriter or Underwriters default in
their obligations to purchase Securities hereunder and the
aggregate principal amount of the Securities that such
defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total principal amount
of the Securities, you may make arrangements satisfactory to
FCX for the purchase of such Securities by other persons,
including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-
defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to
purchase the Securities that such defaulting Underwriters
agreed but failed to purchase. If any Underwriter or
Underwriters so default and the aggregate principal amount
of the Securities with respect to which such default or
defaults occur exceeds 10% of the total principal amount of
the Securities and arrangements satisfactory to you and FCX
for the purchase of such Securities by other persons are not
made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-
defaulting Underwriter or FCX, except as provided in Section
9. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under
this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. The respective indemnities, agreements,
representations, warranties and other statements of FCX or
their officers and of the several Underwriters set forth in
or made pursuant to this Agreement will remain in full force
and effect, regardless of any investigation, or statement as
to the results thereof, made by or on behalf of any
Purchaser, FCX, or any of their respective representatives,
officers or directors or any controlling person, and will
survive delivery of and payment for the Securities. If this
Agreement is terminated pursuant to Section 6 or 8 or if for
any reason the purchase of the Securities by the
Underwriters is not consummated, FCX shall remain
responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the obligations of FCX pursuant to
Section 7 shall remain in effect.
10. All communications hereunder will be in
writing and, if sent to you, will be mailed, delivered or
transmitted by facsimile and confirmed to you, c/o UBS
Securities LLC, 299 Park Avenue, New York, N.Y. 10171,
Attention: Richard Messina (with a copy to John P. Mead,
Sullivan & Cromwell, 125 Broad Street, New York, N.Y.
10004); or if sent to FCX, will be mailed, delivered or
transmitted by facsimile and confirmed to it at 1615 Poydras
Street, New Orleans, Louisiana 70112, Attention: Henry A.
Miller, General Counsel; provided, however, that any notice
to an Underwriter pursuant to Section 7 will be mailed,
delivered or transmitted by facsimile and confirmed to such
Underwriter.
11. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective
successors and the controlling persons referred to in
Section 7, and no other person will have any right or
obligation hereunder.
12. Any action under this Agreement taken by you
jointly or by UBS Securities LLC will be binding upon each
of you.
13. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together
constitute one and the same Agreement.
14. Each of the parties hereto irrevocably agrees
that any legal suit, action or proceeding arising out of or
based upon this Agreement or the transactions contemplated
hereby may be instituted in any New York court, irrevocably
waives, to the fullest extent it may effectively do so, any
objection which it may now or hereafter have to the laying
of venue of any such proceeding and irrevocably submits to
the jurisdiction of such courts in any such suit, action or
proceeding.
15. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New
York.
If the foregoing is in accordance with your
understanding of our agreement, kindly sign and return to us
one of the counterparts hereof, whereupon it will become a
binding agreement among FCX and the several Underwriters in
accordance with its terms.
Very truly yours,
FREEPORT-McMoRan COPPER & GOLD INC.
By/s/R. Foster Duncan
Name: R. Foster Duncan
Title: Vice-President and Treasurer
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
UBS SECURITIES LLC
By /s/Brooks J. Klimley
Name: Brooks J. Klimley
Title: Managing Director
CHASE SECURITIES INC.
By /s/Paul L. Hatton
Name: Paul L. Hatton
Title: Vice President
CS FIRST BOSTON CORPORATION
By /s/John F. Cozzi
Name: John F. Cozzi
Title: Director
<PAGE>
SCHEDULE I
Underwriters Principal Principal
Amount of Amount of
2006 2026
Notes to be Notes
Purchased to be
Purchased
______________ _____________
UBS Securities LLC $66,666,668 $83,333,334
Chase Securities Inc. 66,666,666 83,333,333
CS First Boston Corporation. 66,666,666 83,333,333
______________ ______________
Total 200,000,000 250,000,000
<PAGE>
FREEPORT-McMoRAN COPPER & GOLD INC., Issuer
and
The Chase Manhattan Bank, Trustee
SENIOR
INDENTURE
Dated as of November 15, 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
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
SEC Reports.............................................. 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 2.10Cancellation of Securities;
Disposition Thereof............................ 18
SECTION 2.11Temporary 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 5.10Waiver of Past Defaults........................ 31
SECTION 5.11Trustee to Give Notice of
Default, But May Withhold in
Certain Circumstances.......................... 32
SECTION 5.12Right 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;
Conflicting Interests........................... 36
SECTION 6.10Acceptance of Appointment by
Successor Trustee.............................. 38
SECTION 6.11Merger, Conversion,
Consolidation or Succession to
Business of Trustee............................ 39
SECTION 6.12Preferential Collection of
Claims Against the Issuer...................... 39
SECTION 6.13Appointment 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 Corporation
Substituted.................................... 47
SECTION 9.3 Opinion of Counsel to Trustee.................. 47
ARTICLE TEN - SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONIES
SECTION 10.1Satisfaction and Discharge of
Indenture...................................... 48
SECTION 10.2Application by Trustee of
Funds Deposited for Payment of
Securities..................................... 52
SECTION 10.3Repayment of Monies Held by
Paying Agent................................... 52
SECTION 10.4Return of Monies Held by
Trustee and Paying Agent
Unclaimed for Two Years........................ 52
SECTION 10.5Indemnity for U.S. Government
Obligations.................................... 53
ARTICLE ELEVEN - MISCELLANEOUS PROVISIONS
SECTION 11.1Incorporators, Stockholders,
Officers and Directors of
Issuer Exempt from Individual
Liability...................................... 53
SECTION 11.2Provisions of Indenture for
the Sole Benefit of Parties
and Securityholders............................ 53
SECTION 11.3Successors and Assigns of
Issuer Bound by Indenture...................... 53
SECTION 11.4Notices and Demands on Issuer,
the Trustee and
Securityholders................................ 53
SECTION 11.5Officers' Certificates and
Opinions of Counsel,
Statements to Be Contained
Therein........................................ 54
SECTION 11.6Payments Due on Saturdays,
Sundays and Legal Holidays..................... 55
SECTION 11.7Conflict of Any Provision of
Indenture with Trust Indenture
Act of 1939.................................... 55
SECTION 11.8New York Law to Govern;
Separability................................... 55
SECTION 11.9Counterparts................................... 55
SECTION 11.10Effect of Headings............................ 56
SECTION 11.11Securities in a Foreign Currency or in ECU.... 56
SECTION 11.12Judgment Currency............................. 56
ARTICLE TWELVE - REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1Application of Article......................... 57
SECTION 12.2Notice of Redemption........................... 57
SECTION 12.3Payment of Securities Called
for Redemption................................. 58
SECTION 12.4Mandatory and Optional Sinking
Funds.......................................... 59
TESTIMONIUM................................................... 62
SIGNATURES AND SEALS.......................................... 62
ACKNOWLEDGMENTS............................................... 63
CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture Act of 1939, as amended,
and the Indenture to be dated as of November 15, 1996
between Freeport-McMoRan Copper & Gold Inc. and The Chase
Manhattan Bank, 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 November 15, 1996, by and
between Freeport-McMoRan Copper & Gold Inc. (the "Issuer"),
a Delaware corporation, and The Chase Manhattan Bank, a New
York 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 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 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 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 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 450 West 33rd Street, New York, New York
10001.
"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 and any other applicable statute or
regulation.
"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" 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.
"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 of the Issuer
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, with respect to a Security, the date of original
issuance thereof.
"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.
"Regular Record Date" for 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 2.3, 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 any officer in the Corporate Trustee
Administration Department (or any successor group) of the
Trustee, including any vice president, assistant vice
president, senior trust officer, trust officer, secretary or
any assistant secretary or any other officer or assistant
officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any
corporate trust matter is referred at the Corporate Trust
Office because of his knowledge of and familiarity with the
particular subject.
"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, to the
extent established pursuant to rather than set forth in a
Board Resolution of the Issuer, an Officers' Certificate of
the Issuer 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 of the Issuer 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 Indenture.
The Chase Manhattan Bank,
Trustee
By:
Authorized Officer"
If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, the
Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in substantially the
following form:
"This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
The Chase Manhattan Bank,
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 of the Issuer (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 12.3);
(3) if other than Dollars, the coin or currency in
which the Securities of that series are denominated
(including, but not limited to, any Foreign Currency or
ECU);
(4) the date or dates on which the principal of
the Securities of the series is payable;
(5) the rate or rates at which the Securities of
the series shall bear interest, if any, the date or
dates from which such interest shall accrue, 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 Twelve 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 and the period or periods within
which and the manner in which (if different from the
provisions of Article Twelve 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 (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
provided 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 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) provisions, if any, granting specific rights
to the Holders of Securities of such series upon the
occurrence of such events as may be specified;
(19) any deletions from, modifications of or
additions to the Events of Default or covenants set
forth herein (including any defined terms relating
thereto);
(20) 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 Ten;
(21) 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;
(22) offices at which presentation and demands may
be made and notices be served, if other than the
Corporate Trust Office; and
(23) 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 such 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 and 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 of the Issuer, or a letter addressed to the
Trustee permitting it to rely on an Opinion of Counsel
of the Issuer, 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 of the Issuer, 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 or any of the
subsidiaries of the Issuer that is material to the
Issuer, considered as one enterprise with its
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 or any of its subsidiaries, 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 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 due on any
Interest Payment Date shall be paid to the Holder 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 due presentation for registration of transfer of
any Registered Security of any series at any such office or
agency to be maintained for the purpose 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, Stated Maturity, interest rate
and original issue date 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 at 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 of 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 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
Depositary 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 or any
other applicable statute or regulation, 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 of
the Issuer 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.
None of the Issuer, the Trustee, any paying agent or
the Security Registrar will have any responsibility or
liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests
of a global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership
interests.
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 com-
puted 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 in
substitution for the Security so apparently destroyed, lost
or stolen with Coupons corresponding to the Coupons
appertaining to the Securities so mutilated, defaced,
destroyed, lost or stolen, or in exchange for the Security
to which a mutilated, defaced, destroyed, lost or stolen
Coupon appertained with Coupons appertaining thereto
corresponding to the Coupons so mutilated, defaced,
destroyed, lost or stolen. In every case the applicant for
a substitute Security or Coupon shall furnish to the Issuer
and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as may be required by
them to indemnify and defend and to save each of them
harmless and, in every case of 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, 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, 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 and shall preclude any and all other
rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect
to the replacement or payment of negotiable instruments or
other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Disposition
Thereof. All Securities and Coupons surrendered for
payment, 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
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 payable with respect to and
pursuant to the terms of 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 with
respect to 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 with respect to 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. The
Issuer shall designate an office or agency outside the
United States for each such purpose relating to Unregistered
Securities prior to the issuance of any Unregistered
Securities. 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 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 12.4, 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 it within two
preceding years pursuant to Section 313(c)(2) of the Trust
Indenture Act of 1939. 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 of 1939.
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 of 1939 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 May 15 of each year, commencing with the first
May 15 following the first issuance of Securities pursuant
to Section 2.4, if required by Section 313(a) of the Trust
Indenture Act of 1939, the Trustee shall transmit, pursuant
to Section 313(c) of the Trust Indenture Act of 1939, a
brief report dated as of such May 15 with respect to any of
the events specified in said Section 313(a) which may have
occurred since the later of the immediately preceding May 15
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) of the Trust Indenture Act of 1939.
(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 such 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 Debt, 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 of such series;
provided that if any such failure, default or acceleration
referred to in clauses (f), (g) and (h) 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 (other than those specified in
Section 5.1(d) or (e)) 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(d) or (e)) 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 entire principal (or, if any Securities
are Original Issue Discount Securities, such portion of the
principal as may be specified in 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) 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 all Events of Default under the Indenture, other
than the non-payment of the principal of Securities which
shall have become due by acceleration, shall have been
cured, waived or otherwise remedied as provided herein --
then and in every such case the Holders of a majority in
aggregate principal amount of all the Securities of each
such series or of all the Securities, as the case may be, 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, other than a
Default that is the result of an optional redemption by the
Holders of Securities of any series, the amount of which is
not in excess of $50,000,000 or the equivalent thereof in
any currency or composite currency, unless such Default
shall have continued for a period of 60 days after giving a
notice with respect thereto under Section 5.1(c), 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 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, 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 and pursuant to the terms of 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 provided 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 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 of all series affected; 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 and
Section 310(b) of the Trust Indenture Act of 1939 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. Without prejudice to any other rights
available to the Trustee under applicable law, when the
Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1 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 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 ; Conflict Interests. 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.
If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act of
1939, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and
subject to the provisions of the Trust Indenture Act of 1939
and this Indenture. To the extent permitted by such Act,
the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture
with respect to Securities of more than one series or a
trustee under the Indenture dated as of April 15, 1994,
among P. T. ALatief Freeport Finance Company B. V., as
issuer, Freeport-McMoRan Copper & Gold Inc., as guarantor,
and The Chase Manhattan Bank (formerly known as Chemical
Bank), as Trustee.
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 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
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.
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
for a series of Securities as provided in this Section 6.
10, the Issuer shall (i) mail notice thereof by first-class
mail to the Holders of Registered Securities of such series
at their last addresses as they shall appear in the Security
register, or (ii) in the case of Holders of Unregistered
Securities of such series, 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 of such series 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 for such series and the address of its
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 of 1939 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 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 on 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 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 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, 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 only Securities which the
Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the pledgee is
not the Issuer or any other obligor upon the Securities or
any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the
Issuer or any other obligor on the Securities. In case of a
dispute as to such right, the advice of counsel shall be
full protection in respect of any decision made by the
Trustee in accordance with such advice. Upon request of the
Trustee, the Issuer shall furnish to the Trustee promptly an
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 or revoke any such waiver
or consent, whether or not such Holder remains a Holder
after such record date; provided, however, that unless such
waiver or consent is obtained from the Holders, or duly
designated proxies, of the requisite principal amount of
Outstanding Securities of such series prior to the date
which is the 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) declaration under Section
5.1, (iii) any request to institute proceedings referred to
in Section 5.6 or (iv) 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 or to
revoke the same, 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 a Board
Resolution (which resolution may provide general terms or
parameters for such action and may provide that the specific
terms of such action may be determined in accordance with or
pursuant to 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 or 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;
(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 6.10; and
(h) to provide for uncertificated Securities in
addition to certificated Securities, so long as such
uncertificated Securities are in registered form for
United States federal income tax purposes.
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
(which Resolution may provide general terms or parameters
for such action and may provide that the specific terms of
such action may be determined in accordance with or pursuant
to 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) change the final maturity
of any Security or change the time for payment of any
installment of interest thereon, 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 change 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, and pursuant to
the terms of, 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, 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 without the consent of the
Holder of each Security so affected, 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 a copy
of a Board Resolution of the Issuer (which resolution may
provide general terms or parameters for such action and may
provide that the specific terms of such action may be
determined in accordance with or pursuant to a Company
Order) 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 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 3.7, 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 that any such supplemental
indenture executed pursuant to this Article Eight 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 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 and the due and
punctual performance of every covenant of this Indenture on
the part of the Issuer to be performed or observed; (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 in the case of conveyance by way of lease, when the
successor entity assumes all obligations of the Issuer
hereunder and the provisions of Section 9.1 have been
complied with, 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, disposition 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), 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 or upon redemption (through operation of a
mandatory sinking fund or otherwise) including any
redemption or repayment 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, the Issuer's right of optional
redemption, if any, and the Holder's right to redemption or
repayment at its option, 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 or repayment 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, 3.3 and 3.4, Article Ten and
Article Twelve), 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 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,
the Issuer's right of optional redemption, if any, and the
Holder's right to redemption or repayment at its option, 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 or repayment 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,
3.3 and 3.4, Article Ten and Article Twelve), (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 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, including any
redemption or repayment at the option of the Holder),
provided, that, in connection with any such redemption
at the option of the Issuer, the Issuer shall have made
arrangements satisfactory to the Trustee for the giving
of notice of redemption and, in connection with any
redemption or repayment at the option of the Holder,
for the optional redemption or repayment of all of the
Securities of such series on such redemption or
repayment date);
(b) no Default or 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 or any other
agreement or instrument to which the Issuer is a party
or by which it is bound;
(e) the Issuer has delivered to the Trustee an
Opinion of Counsel to the effect, and such opinion
shall confirm, (i) that, based on the fact that (x) the
Issuer has received from, or there has been published
by, the Internal Revenue Service a ruling or (y) since
the date hereof, there has been a change in the
applicable federal income tax law, in either case,
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 deposit, defeasance and discharge and
will be subject to federal income tax on the same
amount and in the same manner and at the same times as
would have been the case if such deposit, defeasance
and discharge had not occurred; and (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
(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 Article Nine and any other covenants
specified pursuant to Section 2.3 with respect to the
Securities of any series and any Coupons appertaining
thereto, other than the obligation to provide that any
successor to the Issuer, as a condition to such succession,
assume the performance of any covenant of this Indenture of
the Issuer relating to the compensation, reimbursement of
expenses and indemnities of the Trustee and any predecessor
Trustee, 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 Article or any such covenant, whether
directly or indirectly by reason of any reference elsewhere
herein to such Article or any such covenant or by reason of
any reference in such Article 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 (without
investment of such cash or reinvestment of any interest
or proceeds from such U.S. Government Obligations) 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, including any
redemption or repayment at the option of the Holder)
provided, that, in connection with any such redemption
at the option of the Issuer, the Issuer shall have made
arrangements satisfactory to the Trustee for the giving
of notice of redemption and, in connection with any
redemption or repayment at the option of the Holder,
for the optional redemption or repayment of such series
on such redemption or repayment date);
(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,
this Indenture, or any Securities issued hereunder or
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 paid or caused to be
paid all other sums then payable hereunder by the
Issuer and the Issuer shall have delivered to the
Trustee an Officers' 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 or
the defeasance thereof, 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 in writing and 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 provides 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 3.7, 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 12.4, 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 and the definitions relating thereto, (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
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, 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; Separability.
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.
In case any provision of this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining
provisions shall not in any way be affected thereby.
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(f) or (g).
All decisions and determinations of the Trustee
regarding the Market Exchange Rate or any alternative
determination provided for in the preceding paragraph shall
be in its sole discretion and shall, in the absence of
manifest error, be conclusive to the extent permitted by law
for all purposes and irrevocably binding upon the Issuer and
all Holders.
SECTION 11.12 Judgment Currency. The Issuer agrees, to
the fullest extent it may effectively do so under applicable
law, that (a) if for the purpose of obtaining judgment in
any court it is necessary to convert the sum due in respect
of the principal of or interest on the Securities of any
series (the "Required Currency") into a currency in which a
judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with
the Judgment Currency on the day on which final unappealable
judgment is entered, unless such day is not a New York
Banking Day, then, to the extent permitted by applicable
law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with
the Judgment Currency on the New York Banking Day preceding
the day on which final unappealable judgment is entered and
(b) its obligations under this Indenture to make payments in
the Required Currency (i) shall not be discharged or
satisfied by any tender, or any recovery pursuant to any
judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery
shall result in the actual receipt, by the payee, of the
full amount of the Required Currency expressed to be payable
in respect of such payments, (ii) shall be enforceable as an
alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by
which such actual receipt shall fall short of the full
amount of the Required Currency so expressed to be payable
and (iii) shall not be affected by judgment being obtained
for any other sum due under this Indenture. For purposes of
the foregoing, "New York Banking Day" means any day except a
Saturday, Sunday or a legal holiday in The City of New York
or a day on which banking institutions in The City of New
York are authorized or required by law or executive order to
close.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions
of this Article shall be applicable to the Securities of any
series which are redeemable before their maturity or to any
sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Section 2.3
for Securities of such series.
SECTION 12.2 Notice of Redemption. 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. Notice
of redemption to all Holders of Unregistered Securities
shall be published in an Authorized Newspaper in the Borough
of Manhattan, the City of New York and in an Authorized
Newspaper in London (and, if required by Section 3.7, in an
Authorized Newspaper in Luxembourg), in each case, once in
each of three successive calendar weeks, the first
publication to be not less than 30 nor more than 60 days
prior to the date fixed for redemption. Any notice which is
mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any
defect in the notice to the Holder of any Security of a
series designated for redemption as a whole or in part,
shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall
specify the principal amount of each Security of such series
held by such Holder to be redeemed, the Redemption Date, the
applicable Redemption Price, and, if the Redemption Price
was required to be calculated according, 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.
On or before the Redemption Date specified in the
notice of redemption given as provided in this Section, the
Issuer will deposit with the Trustee or with one or more
paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in
Section 3.4) an amount of money sufficient to redeem on the
Redemption Date all the Securities of such series to be
redeemed at the appropriate Redemption Price, together with
accrued interest to the Redemption Date. 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.
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 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 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 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
presented.
SECTION 12.4 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 practicable, 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 November 15, 1996.
FREEPORT-McMoRan Copper & Gold Inc.
By: \s\ R. Foster Duncan
___________________________
R. Foster Duncan
Vice President and Treasurer
[CORPORATE SEAL]
Attest:
By: \s\ Michael C. Kilanowski, Jr.
_______________________________
Michael C. Kilanowski, Jr.
Secretary
The Chase Manhattan Bank, as Trustee
By: \s\ P. Morabito
______________________________
P. Morabito
Vice President
[CORPORATE SEAL OF TRUSTEE]
Attest:
By: \s\ Gregory P. Shea
________________________
Gregory P. Shea
Assistant Vice President
STATE OF LOUISIANA
PARISH OF ORLEANS
On this 15th day of November, 1996 before me personally
came R. Foster Duncan, to me personally known, who, being by
me duly sworn, did depose and say that he resides at 1442
Webster, New Orleans, Louisiana, that he is a Vice President
and Treasurer 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]
\s\ Douglas N. Currault, II
____________________________
Notary Public
STATE OF NEW YORK
COUNTY OF NEW YORK
On this 15th day of November, 1996, before me
personally came P. Morabito, to me personally known, who,
being by me duly sworn, did depose and say that she resides
at 60 Kinglet Drive South, Cranbury, New Jersey; that she is
a Vice President of The Chase Manhattan Bank, one of the
corporations described in and which executed the above
instrument; that she 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 she
signed her name thereto by like authority.
[NOTARIAL SEAL]
\s\ Annabelle DeLuca
________________________
Notary Public
FREEPORT-McMoRan COPPER & GOLD INC.
and
THE CHASE MANHATTAN BANK,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of November 18, 1996
to
SENIOR INDENTURE
Dated as of November 15, 1996
$200,000,000
7.50% Senior Notes due 2006
and
$250,000,000
7.20% Senior Notes due 2026
<PAGE>
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (this "Supplemental
Indenture"), dated as of November 18, 1996, is by and
between Freeport-McMoRan Copper & Gold Inc., a Delaware
corporation (the "Issuer"), and The Chase Manhattan Bank, a
New York corporation, as trustee (the "Trustee"), and to the
Senior Indenture, dated as of November 15, 1996 (the
"Original Indenture"), between the Issuer and the Trustee
(the Original Indenture, as supplemented by this First
Supplemental Indenture being referred to herein as the
"Indenture").
W I T N E S S E T H :
WHEREAS, the Issuer has heretofore executed and
delivered to the Trustee the Original Indenture providing,
among other things, for the issuance from time to time of
the Issuer's Securities;
WHEREAS, the Issuer has duly authorized (i) the
creation of the first and second series of securities under
the Indenture, to be known as its 7.50% Senior Notes due
2006 (the "2006 Notes") and its 7.20% Senior Notes due 2026
(the "2026 Notes," and together with the 2006 Notes, the
"Senior Notes") and (ii) the execution and delivery of this
Supplemental Indenture to establish the Senior Notes as two
series of Securities under the Indenture and to provide for,
among other things, the issuance of and the respective forms
and terms of the Senior Notes and certain additional
covenants;
WHEREAS, Section 8.1(e) of the Original Indenture
provides for the Issuer and the Trustee to enter into an
indenture supplemental to the Original Indenture to
establish the form and terms of Securities of any series as
provided by Sections 2.1 and 2.3 of the Original Indenture;
WHEREAS, Section 2.3 of the Original Indenture provides
for various matters with respect to any series of Securities
issued under the Indenture to be established in an indenture
supplemental to the Original Indenture; and
WHEREAS, all things necessary to make the Senior Notes,
when executed by the Issuer and authenticated and delivered
by the Trustee as provided in the Indenture, the valid,
binding and legal obligations of the Issuer, and to
constitute this First Supplemental Indenture a valid
agreement of the Issuer according to its terms have been
done;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises and the
purchases of the Securities of the two series provided for
herein 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 each
such series as follows:
ARTICLE ONE
DEFINITIONS
1.1 Certain Terms Defined. Unless otherwise defined
herein or unless the context of this First Supplemental
Indenture otherwise requires, all terms used in this First
Supplemental Indenture which are defined in the Original
Indenture shall have the meanings assigned to them in the
Original Indenture. The following terms, which are in
addition to those defined in Section 1.1 of the Original
Indenture, shall have the respective meanings specified in
this Section. Such terms shall apply only to the Senior
Notes except to the extent specifically made applicable to
any other series of Securities by the Board Resolutions,
Officers' Certificate or supplemental indenture establishing
such series of Securities as provided for in Section 2.3 of
the Original Indenture. All references herein to Articles
and Sections, unless otherwise specified, refer to the
corresponding Articles and Sections of this First
Supplemental Indenture. The terms "herein," "hereof,"
"hereunder" and other words of similar import refer to this
First Supplemental Indenture.
"Attributable Debt" when used in connection with a
Sale/Leaseback Transaction means, at the time of
determination, the lesser of: (a) the fair value of the
property subject thereto (as determined in good faith by the
Issuer); or (b) the then present value of the total net
amount of rent required to be paid under the lease in
respect of such Sale/Leaseback Transaction during the
remaining term thereof (including any renewal term or period
for which such lease has been extended) or until the earlier
date on which the lessee may terminate such lease upon
payment of a penalty or a lump-sum termination payment (in
which case the total net rent shall include such penalty or
termination payment), computed by discounting from the
respective due dates to such dates such total net amount of
rent at the actual interest factor included in such rent or
implicit in the terms of the applicable Sale/Leaseback
Transaction, as determined in good faith by the Issuer. For
purposes of the foregoing definition, rent shall not include
amounts required to be paid by the lessee, whether or not
designated as rent or additional rent, on account of or
contingent upon maintenance and repair, insurance, taxes,
assessments, water rates and similar charges.
"Business Day" means a day which, in the City and State
of New York, is neither a Saturday, Sunday or legal holiday
nor a day on which banking institutions and trust companies
are authorized by law or regulation or executive order to
close.
"Capital Stock" means any and all shares, interests,
rights to purchase, options, participations or other
equivalents of or interests in (however designated)
corporate stock or any security issued in exchange therefor
or distributed in respect thereof.
"Capitalized Lease Obligation" of any Person means any
obligation that is required to be classified and accounted
for as a capital lease on a balance sheet of such Person in
accordance with generally accepted accounting principles.
"Comparable Treasury Issue" means, with respect to any
series of Senior Notes, the United States Treasury security
selected by an Independent Investment Banker as having a
maturity comparable to the remaining term of the Senior
Notes of such series that would be utilized, at the time of
selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of such series
of Senior Notes.
"Comparable Treasury Price" means, with respect to any
series of Senior Notes, with respect to any redemption date,
(i) the average of the bid and asked prices for the
Comparable Treasury Issue for such series (expressed in each
case as a percentage of its principal amount) on the third
Business Day preceding such redemption date, as set forth in
the daily statistical release (or any successor release)
published by the Federal Reserve Bank of New York and
designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any
successor release) is not published or does not contain such
prices on such Business Day, (A) the average of the
Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (B) if the Trustee obtains
fewer than three such Reference Treasury Dealer Quotations,
the average of all such Quotations.
"Consolidated Total Assets" means at any date the
consolidated assets of a Person and its consolidated
Subsidiaries, including all investments by such Person or
its consolidated Subsidiaries in other Persons, all as
reflected on the most recent consolidated balance sheet of
such Person and its consolidated Subsidiaries.
"COW Area Block A" means the geographic area designated
as Contract Block A in the Contract of Work between the
Government of the Republic of Indonesia and PT-FI, dated
December 30, 1991, as the same has been renewed, replaced,
extended, amended, supplemented or modified to the date
hereof, containing, as of the date hereof, all proved and
probable reserves of PT-FI.
"Debt" means (without duplication), with respect to any
Person, (i) all obligations of such Person for borrowed
money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion
thereof), (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred and
unpaid purchase price of property or services (including
conditional sale obligations and title retention
arrangements), except accounts payable and accrued expenses
incurred in the ordinary course of business, (iv) all
Capitalized Lease Obligations of such Person, (v) all
obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or
similar credit transaction securing obligations described in
the foregoing clauses (i) through (iv), (vi) any obligations
of such Person with respect to the redemption, repayment or
other purchase of any preferred stock (but excluding any
obligation due within the following six months, the payment
of which is secured by a deposit of cash or U.S. Government
Obligations), (vii) all Debt of others secured by a Lien on
any asset of such Person, whether or not such Debt is
assumed by such Person, and (viii) all Debt of others
guaranteed by such Person to the extent of such guarantee.
"Event of Default" means any event or condition
specified in Section 5.1 of the Original Indenture, as
amended, modified and supplemented by Article Four hereof.
"First Supplemental Indenture" means this First
Supplemental Indenture dated as of November 18, 1996 by and
between the Issuer and the Trustee.
"Independent Investment Banker" means one of the
Reference Treasury Dealers appointed by the Issuer as
Independent Investment Banker for purposes of this First
Supplemental Indenture.
"issue" means issue, assume, guarantee, incur or
otherwise become liable for; provided, however, that any
Debt or Capital Stock of a Person existing at the time such
Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to
be issued by such Subsidiary at the time it becomes a
Subsidiary.
"Lien" means, with respect to any property or assets,
any mortgage or deed of trust, pledge, charge, security
interest, assignment, encumbrance, conditional sale or other
title retention agreement; provided, however, that Lien
shall not include a trust established for the purpose of
defeasing any Debt pursuant to the terms evidencing or
providing for the issuance of such Debt if the assets of
such trust are limited to cash and U.S. Government
Obligations.
"Non-Recourse Obligation" means, at any date, Debt
substantially related to (i) the acquisition of property or
assets not owned by the Issuer or any of its Subsidiaries as
of the date of original issuance of the Senior Notes or (ii)
the financing of a project involving the acquisition or
development of any property or assets of the Issuer or any
of its Subsidiaries, as to which in the case of clause (i)
or (ii) the obligee with respect to such Debt has no
recourse to the general corporate funds or the property or
assets, in general, of the Issuer.
"PT-FI" means P. T. Freeport Indonesia Company, a
limited liability company organized under the laws of
Indonesia and also domesticated in Delaware, and its
successors and assigns.
"PT-FI Bank Credit Facility" means the credit facility
evidenced by that certain $550 million Credit Agreement,
dated as of October 27, 1989, as amended, modified,
supplemented or restated from time to time, by and among PT-
FI, the Issuer, the financial institutions from time to time
parties thereto, First Trust of New York, National
Association, as PT-FI Trustee, and The Chase Manhattan Bank
as Administrative Agent, Security Agent, JAA Security Agent
and Documentary Agent.
"Reference Treasury Dealer" means each of UBS
Securities LLC, Chase Securities Inc. and CS First Boston
Corporation and their respective successors; provided
however, that if any of the foregoing cease to be a primary
U.S. Government Securities dealer in New York City (a
"Primary Treasury Dealer"), the Issuer shall substitute
therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with
respect to any series of Senior Notes, with respect to each
Reference Treasury Dealer and any redemption date, the
average, as determined by the Trustee, of the bid and asked
prices for the Comparable Treasury Issue for such series
(expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 5:00 p.m. on the third Business Day
preceding such redemption date.
"Regular Record Dates" means the dates set forth as
such in Section 2.4(4).
"Sale/Leaseback Transaction" means any arrangement with
any Person providing for the leasing by the Issuer, for a
period of more than three years, of any property or assets,
which property or assets have been or are to be sold or
transferred by the Issuer to such Person in contemplation of
such leasing.
"Senior Notes" has the meaning stated in the second
recital of this First Supplemental Indenture.
"Senior Secured Indebtedness" means Debt of the Issuer
secured by a Lien on any property or assets of the Issuer.
"Significant Subsidiary" means any Subsidiary of the
Issuer the Consolidated Total Assets of which equal or
exceed an amount equal to 20% of the Issuer's Consolidated
Total Assets.
"Subsidiary" of a Person means any corporation,
association, partnership or other business entity of which
more than 50% of the total voting power of shares of Capital
Stock or other interests (including partnership interests)
entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or any of its
Subsidiaries, and any partnership of which more than 50% of
the partnership interests are owned or controlled, directly
or indirectly, by such Person or any of its Subsidiaries.
"Treasury Rate" means, with respect to any series of
Senior Notes, with respect to any redemption date, the rate
per annum equal to the semiannual equivalent yield to
maturity of the Comparable Treasury Issue for such series,
assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to
the Comparable Treasury Price for such redemption date.
"2006 Notes" or "2006 Note" has the meaning stated in
the second recital of this First Supplemental Indenture.
"2026 Notes" or "2026 Note" has the meaning stated in
the second recital of this First Supplemental Indenture.
ARTICLE TWO
TERMS AND ISSUANCE OF 7.50% SENIOR NOTES DUE 2006
AND 7.20% SENIOR NOTES DUE 2026
SECTION 2.1. Issue of Senior Notes. The first and
second series of Securities to be issued under the
Indenture, which shall be designated the "7.50 % Senior
Notes due 2006" and the "7.20% Senior Notes due 2026,"
respectively, shall be executed, authenticated and delivered
in accordance with the provisions of, and shall in all
respects be subject to, the terms, conditions and covenants
of the Indenture (including the forms of Senior Notes set
forth in Exhibits A and B hereto). The aggregate principal
amount of 2006 and 2026 Notes which may be authenticated and
delivered under the Indenture shall not exceed $200,000,000
and $250,000,000, respectively (except for Senior Notes
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Senior Notes
pursuant to Sections 2.8, 2.9, 2.11, 8.5 or 12.3 of the
Original Indenture). The entire amount of Senior Notes may
forthwith be executed by the Issuer and delivered to the
Trustee and shall be authenticated by the Trustee and
delivered to or upon the order of the Issuer (contained in a
Company order) pursuant to Section 2.4 of the Original
Indenture.
SECTION 2.2 Forms. The 2006 Notes and the 2026 Notes
shall each be issued in whole in the form of one or more
Registered Global Securities and shall be substantially in
the respective forms set forth in Exhibits A and B hereto,
each of which is hereby incorporated by reference and made a
part of the Indenture. The Depositary for such Registered
Global Securities shall be The Depository Trust Company, 55
Water Street, New York, New York 10041.
SECTION 2.3 Stated Maturity. The 2006 Notes shall
have a Stated Maturity with respect to the principal of (and
any accrued and unpaid interest or premium on) such
Securities of November 15, 2006, and the 2026 Notes shall
have a Stated Maturity with respect to the principal of (and
any accrued and unpaid interest or premium on) such
Securities of November 15, 2026.
SECTION 2.4 Interest. Subject to the terms of the
Senior Notes set forth in Exhibits A and B hereto, the
following shall apply to the Senior Notes:
(1) The 2006 Notes shall bear interest at the rate of
7.50% per annum and the 2026 Notes shall bear interest at
the rate of 7.20% per annum.
(2) Interest in respect of the Senior Notes shall
accrue from November 18, 1996 or from the most recent
Interest Payment Date to which interest has been paid or
duly provided for.
(3) The Interest Payment Dates on which interest shall
be payable in respect of the Senior Notes shall be May 15
and November 15 in each year, commencing May 15, 1997.
(4) The Regular Record Dates for interest in respect
of the Senior Notes shall be April 30 and October 31
(whether or not a Business Day) in respect of the interest
payable on May 15 and November 15, respectively.
(5) Interest on the Senior Notes shall be calculated
on the basis of a 360-day year consisting of twelve 30-day
months.
SECTION 2.5 Redemption. The Senior Notes will be
redeemable and the provisions of Article Twelve of the
Original Indenture will be applicable to the Senior Notes,
to the extent and in the manner provided in Article Seven
hereof.
SECTION 2.6 Additional Covenants. The covenants
contained in Article Three of this First Supplemental
Indenture shall apply to the Senior Notes in addition to the
covenants contained in the Original Indenture.
SECTION 2.7 Amendments to Events of Default. The
amendments to Section 5.1 of the Original Indenture
contained in Article Four of this First Supplemental
Indenture shall apply to the Senior Notes.
SECTION 2.8 Amendments to Article Nine. The
amendments to Section 9.1 of the Original Indenture
contained in Article Six of this First Supplemental
Indenture shall apply to the Senior Notes.
SECTION 2.9 Repayment Option. The 2026 Notes may be
repaid, at the option of the holders thereof on November 15,
2003, in accordance with and pursuant to the terms of
Sections 11.13 and 11.14 of the Original Indenture as added
thereto by Article Eight of this First Supplemental
Indenture.
ARTICLE THREE
ADDITIONAL COVENANTS
For purposes of the Senior Notes, and solely for the
benefit of the Holders thereof, Article Three of the
Original Indenture shall be amended by adding thereto the
following additional covenants of the Issuer. Such
covenants shall apply only to the Senior Notes except to the
extent specifically made applicable to any other series of
Securities by the Board Resolutions, Officers' Certificate
or supplemental indenture establishing such series of
Securities as provided for in Section 2.3 of the Original
Indenture.
"SECTION 3.8 Limitation on Liens. Except as provided
in this Section 3.8, the Issuer will not issue, create,
incur, assume or suffer to exist any Debt secured by any
Lien upon (i) any property or assets, now owned or hereafter
acquired by the Issuer or (ii) any Capital Stock of PT-FI or
a Restricted PT-FI Transferee (as defined below) now owned
or hereafter acquired by the Issuer or any Subsidiary of the
Issuer without making effective provision whereby any and
all Senior Notes then or thereafter Outstanding will be
secured by a Lien equally and ratably with (or, at the
Issuer's option, prior to) any and all obligations thereby
secured for so long as any such obligations shall be so
secured. The foregoing restriction, however, will not,
however, apply to:
(a) Liens on the Capital Stock of any Subsidiary,
including any Restricted PT-FI Transferee, to secure the
Issuer's guarantee of any Debt of such Subsidiary in an
aggregate principal amount for all such Debt of all such
Subsidiaries (including any extension, refinancing, renewal,
replacement or refunding of such Debt) not to exceed the
existing committed amount under the PT-FI Bank Credit
Facility on November 13, 1996, provided that in the case of
a Lien on the Capital Stock of PT-FI in no event shall
Capital Stock representing more than a 50.1% ownership
interest in PT-FI on a fully-diluted basis be subject to any
such Lien;
(b) Liens to secure any Debt of the Issuer (including
any guarantee by the Issuer of any Debt of a Subsidiary of
the Issuer) in an aggregate principal amount (including any
extension, refinancing, renewal, replacement or refunding of
such Debt) not to exceed the principal amount of the Debt
(excluding for this purpose the amount committed or
outstanding under the PT-FI Bank Credit Facility on November
13, 1996 and the aggregate amount of Debt of FM Properties
Inc. and its subsidiaries guaranteed or committed to be
guaranteed by the Issuer on November 13, 1996) committed or
outstanding on November 13, 1996, which amount does not
exceed $630 million;
(c) Liens incurred on real or personal property,
including the Capital Stock of any Subsidiary acquiring or
owning such property, for the purpose of (i) financing all
or any part of the purchase price of such property by the
Issuer or such Subsidiary and incurred prior to, at the time
of, or within 180 days after, the acquisition of such
property or (ii) financing all or any part of the cost of
construction, improvement, development or expansion of any
such property, provided that in the case of clause (i) or
(ii) the amount of such financing shall not exceed the
amount expended in the acquisition of, or construction,
improvement or development of, such property; provided
further, that the Lien permitted by this clause (c) shall
not include any Lien on the Capital Stock of (x) PT-FI or
(y) any other Subsidiary of the Issuer to which PT-FI has
transferred, directly or indirectly, assets with a value in
excess of $10 million and which are within or constitute a
part of COW Area Block A, other than (A) machinery,
equipment, fixtures, infrastructure and real property
(excluding any and all mineral rights appertaining thereto)
that is not directly involved in the mining of COW Area
Block A and (B) assets that are transferred by PT-FI on
terms that are no less favorable to PT-FI than those that
could have been obtained by PT-FI in a comparable
transaction with an unrelated party (any such Subsidiary
described in clause (y) being referred to herein as a
"Restricted PT-FI Transferee");
(d) Liens on property or other assets existing at the
time of acquisition thereof by the Issuer, including
acquisition through merger, consolidation or the purchase of
property or other assets; provided that such Liens do not
extend to other property or assets of the Issuer;
(e) Liens created in connection with a project
financed with, and created to secure a Non-Recourse
Obligation, provided that such Liens are limited (i) to the
property or assets acquired, constructed or improved with
the proceeds of such Non-Recourse Obligation and (ii) to the
Capital Stock of a special purpose Subsidiary of the Issuer
created to issue or incur such Non-Recourse Obligation;
(f) Liens arising from or in connection with the
conveyance of any production payment or similar obligation
or instrument with respect to any mineral or natural
resource that is not in production on November 13, 1996;
(g) Liens to secure Debt incurred in connection with
the construction, installation or financing of pollution
control or abatement facilities or other forms of industrial
revenue or development bond financing, which Liens extend
solely to the property which is the subject thereof;
(h) Liens to secure Debt issued or guaranteed by the
United States or any state or any department, agency or
instrumentality of the United States, incurred in connection
with the financing of the construction, refurbishment or
operation of any property or assets of the Issuer, which
Liens extend solely to the property which is the subject
thereof;
(i) Liens arising by reason of deposits necessary to
obtain standby letters of credit and surety bonds in the
ordinary course of business;
(j) Liens in favor of governmental bodies to secure
progress, advance and other payments required in connection
with the acquisition, possession or use of any property or
assets of the Issuer;
(k) Liens in favor of customs and revenue authorities
or incurred upon any property or assets in accordance with
customary banking practice to secure any indebtedness
incurred in connection with the exporting of goods to, or
between, or the marketing of goods, or the importing of
goods from, foreign countries, which Liens extend only to
the property or asset being so exported or imported;
(l) Liens upon property or assets sold by the Issuer
resulting from the exercise of any rights or arising out of
defaults on receivables to secure Debt relating to the sale
of such property or assets; and
(m) Liens to secure Debt incurred to extend,
refinance, renew, replace or refund (or successive
extensions, refinancings, renewals, replacements or
refundings) of any Debt secured by any Lien referred to in
the foregoing clauses (c) through (l) so long as such Lien
does not extend to any other property and the amount of such
Debt so secured is not increased above the amount
outstanding immediately prior to such refinancing.
Notwithstanding the foregoing, the Issuer may create or
assume Liens in addition to those permitted by the preceding
sentence of this Section 3.8 and renew, extend or replace
such Liens, provided that at the time of such creation,
assumption, renewal, extension or replacement, and after
giving effect thereto, the Debt so secured by any such Lien
plus any Attributable Debt does not exceed 10% of
Consolidated Total Assets as shown on the balance sheet of
the Issuer as of the end of the most recent fiscal quarter
prior to the incurrence of the Debt for which a balance
sheet is available."
"SECTION 3.9 Limitation on Sale/Leaseback Transactions.
Except as otherwise provided in this Section 3.9, the Issuer
will not enter into any Sale/Leaseback Transaction unless
(a) the Issuer would be entitled to incur Debt, in a
principal amount equal to the Attributable Debt with respect
to such Sale/Leaseback Transaction secured by a Lien on the
property subject to such Sale/Leaseback Transaction pursuant
to Section 3.8 above, without equally and ratably securing
the Outstanding Senior Notes pursuant to Section 3.8 above;
(b) since the date of the original issuance of the Senior
Notes and within a period commencing six months prior to the
effective date of such Sale/Leaseback Transaction and ending
six months thereafter, the Issuer has expended or will
expend for any property (including amounts expended for the
acquisition, and for additions, alterations, improvements
and repairs thereto) an amount equal to all or a portion of
the net proceeds received from such transaction and the
Issuer elects to designate such amount as a credit against
the application of the restrictions set forth in Section 3.8
above to such transaction (with any such amount not being so
designated to be applied as set forth in (c) below); or (c)
the Issuer, during or immediately after the expiration of
the 12 months after the effective date of any such
Sale/Leaseback Transaction, applies to the voluntary
defeasance or retirement of the Senior Notes and any of its
other Senior Secured Indebtedness an amount equal to the
greater of the net proceeds of the sale or transfer of the
property leased in such transaction or the Attributable Debt
as determined by the Issuer in an Officers' Certificate
delivered to the Trustee at the time of entering into such
transaction (in either case adjusted to reflect the
remaining term of the lease and any amount utilized by the
Issuer as set forth in (b) above), less an amount equal to
the principal amount of the Senior Notes delivered within 12
months after the date of such arrangement to the Trustee for
retirement and cancellation and excluding retirements of
Senior Notes and any Senior Secured Indebtedness as a result
of conversions or pursuant to mandatory sinking fund or
mandatory prepayment provisions or by payment at maturity."
"SECTION 3.10 Payment of Taxes and Other Claims. The
Issuer will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1)
taxes, assessments and governmental charges levied or
imposed upon the Issuer or upon the income, profits or
property of the Issuer, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become
a Lien upon the property of the Issuer; provided, however,
that the Issuer shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is
being contested in good faith in appropriate proceedings."
ARTICLE FOUR
EVENTS OF DEFAULT
For purposes of the Senior Notes, and for the benefit
of the Holders thereof, Section 5.1 of the Original
Indenture shall be amended (i) by amending and restating
clause (b) of the definition of "Event of Default" as set
forth below, (ii) by adding to such definition a new clause
(c) as set forth below and renumbering clause (c) of such
definition as clause (d), (iii) by substituting clauses (e),
(f), (g) and (h) set forth below for clauses (d), (e), (f)
and (g), respectively, of the definition of "Events of
Default" in the Original Indenture, (iv) by renumbering
clause (h) of such definition as clause (i) and (v) by
substituting the material set forth under "Insert" below for
the balance of the first full paragraph and the second full
paragraph of Section 5.1 of the Original Indenture. Such
amended and additional Events of Default shall apply only to
the Senior Notes except to the extent specifically made
applicable to any other series of Securities by the Board
Resolutions, Officers' Certificate or supplemental indenture
establishing such series of Securities as provided for in
Section 2.3 of the Original Indenture.
"(b) default in the payment of all or any part of
the principal of any of the Securities of such series
of Senior Notes as and when the same shall become due
and payable at their Stated Maturities, upon
redemption, or, in the case of the 2026 Notes, upon
exercise by a holder of any such 2026 Note of the
repayment option described in and pursuant to Section
11.13 hereof, or otherwise; or"
"(c) failure on the part of the Issuer to comply
with the covenants contained in Section 9.1 of the
Indenture; 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 any Significant Subsidiary in
an involuntary case or proceeding under any applicable
Insolvency Law or (B) a decree or order adjudging the
Issuer or any Significant Subsidiary a bankrupt or
insolvent under any applicable Insolvency Law, or
appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Issuer
or any Significant Subsidiary or of any substantial
part of the property of the Issuer or any Significant
Subsidiary or ordering the winding up or liquidation of
the affairs of the Issuer or any Significant
Subsidiary, 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 any
Significant Subsidiary 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
any Significant Subsidiary to the entry of a decree or
order for relief in respect of the Issuer or any
Significant Subsidiary 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 any Significant
Subsidiary, or the filing by the Issuer or any
Significant Subsidiary of a petition, answer or consent
seeking reorganization or relief under any applicable
Insolvency Law, or the consent by the Issuer or any
Significant Subsidiary 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 any
Significant Subsidiary, or of any substantial part of
the property of the Issuer or any Significant
Subsidiary, or the making by the Issuer or any
Significant Subsidiary of an assignment for the benefit
of creditors, or the admission by the Issuer or any
Significant Subsidiary 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 any Significant Subsidiary) in furtherance of any
such action; or"
"(g) the acceleration of the maturity or non-
payment within any applicable grace period after final
maturity of any Debt (other than the Senior Notes or
any Non-Recourse Obligation) of the Issuer or any
Significant Subsidiary having an outstanding principal
amount of $40,000,000 or more individually or in the
aggregate (or the equivalent thereof in any other
currency or composite currency) if, in the case of an
acceleration, such acceleration has not been rescinded
or annulled within a period of 30 days; or"
"(h) the rendering of one or more judgments or
orders for the payment of money in the aggregate in
excess of $40,000,000 (calculated net of any insurance
coverage that the insurer has irrevocably acknowledged
to the Issuer or any Significant Subsidiary as covering
such judgment in whole or in part) against the Issuer
or any Significant Subsidiary and such judgment or
order shall continue unsatisfied and unstayed for a
period of 60 days,"
Insert: "provided that if any such failure or
acceleration referred to in clause (g) 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 Holders of the Securities
of such series."
"If an Event of Default occurs with respect to the
Securities of a series of Senior Notes and is continuing
(other than an Event of Default specified in clause (e) or
(f) above), then, and in each and every such case, unless
the principal of all of the Securities of such series of
Senior Notes shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Securities of such series
then Outstanding hereunder, by notice in writing to the
Issuer (and to the Trustee if given by Securityholders), may
declare the entire principal, plus accrued and unpaid
interest, if any, through the date of the declaration of
acceleration of all the Securities of such series, 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 clause (e) or (f) of this Section
occurs, the principal amount of all the Securities of such
series shall automatically, and without any declaration or
other action on the part of the Trustee or any Holder,
become immediately due and payable. The amount due and
payable on the acceleration of any Security will be equal to
100% of the principal amount of such Security, plus accrued
interest, if any, to the date of payment. The foregoing
provisions, however, are subject to the condition that if,
at any time after the principal of the Securities of such
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, if any, upon all the Securities of such series,
and the principal of any and all Securities of such series
which shall have become due otherwise than by acceleration
(with interest upon such principal and, to the extent that
payment of such interest is enforceable under applicable
law, on overdue installments of interest, if any, at the
same rate as the rate of interest specified in the
Securities of such series, to the date of such payment or
deposit) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee and each predecessor
Trustee, 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 if any
and all Events of Default with respect to such series under
this 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 the Securities
of such series then Outstanding, by written notice to the
Issuer and to the Trustee, may waive all defaults with
respect to such series and rescind and annul such
declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any
subsequent Default or shall impair any right consequent
thereon."
For purposes of the Senior Notes, and for the benefit
of the Holders thereof, Section 5.2 of the Original
Indenture shall be amended by deleting the following words
from clause (b) thereof: "other than a Default that is the
result of an optional redemption by the Holders of
Securities of any series, the amount of which is not in
excess of $50,000,000 or the equivalent thereof in any
currency or composite currency, unless such Default shall
have continued for a period of 60 days after giving a notice
with respect thereto under Section 5.1(c),". Such deletion
shall apply only to the Senior Notes except to the extent
specifically made applicable to any other series of
Securities by Board Resolutions, Officers' Certificates or
supplemental indentures establishing such series of
Securities as provided for in Section 2.3 of the Original
Indenture.
ARTICLE FIVE
CONCERNING THE TRUSTEE
For purposes of the Senior Notes, the following
paragraph shall be added to the end of Section 6.1 of the
Original Indenture. Such amended paragraph shall apply to
the Senior Notes and to any other series of Securities to
which the foregoing amended and additional Events of Default
are made applicable as aforesaid.
"The Trustee should not be charged with knowledge of
any Event of Default under Section 5.1(c), (g) or (h) or of
the identity of any Significant Subsidiary unless a
Responsible Officer of the Trustee shall have actual
knowledge thereof or the Trustee shall have received written
notice thereof in accordance with Section 11.4 hereof from
the Issuer or any Securityholder."
ARTICLE SIX
CONSOLIDATION, MERGER AND SALE OF ASSETS
For purposes of the Senior Notes, and solely for the
benefit of the Holders thereof, Article Nine of the Original
Indenture shall be amended by deleting Section 9.1 of the
Original Indenture and substituting therefor the following
provisions. Such amended provisions shall apply only to the
Senior Notes except to the extent specifically made
applicable to any other series of Securities by the Board
Resolutions, Officers' Certificate or supplemental indenture
establishing such series of Securities as provided for in
Section 2.3 of the Original Indenture.
"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 Person that acquires by sale, conveyance, transfer, lease
or disposition all or substantially all of the assets of 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 corporation
pursuant to Article Eight hereof, all of the obligations of
the Issuer pursuant to this Indenture and the Senior Notes
and the due and punctual performance of any covenant of this
Indenture on the part of the Issuer to be performed or
observed; (ii) immediately after giving effect to such
transaction and treating any Debt which becomes an
obligation of the Issuer or any Subsidiary of the Issuer 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;
(iii) if, as a result of any such transaction, property or
assets of the Issuer or Capital Stock of PT-FI or a
Restricted PT-FI Transferee would become subject to a Lien
prohibited by Section 3.8 hereof, the Issuer shall have
secured the Senior Notes as required by said Section 3.8;
and (iv) the Issuer has delivered to the Trustee an
Officers' Certificate and Opinion of Counsel, each stating
that such transaction and, if a supplemental indenture is
required in connection with such transaction, such
supplemental indenture, complies with this Indenture and
that all conditions precedent provided for herein relating
to such transaction have been complied with."
ARTICLE SEVEN
REDEMPTION OF SENIOR NOTES
For purposes of the Senior Notes, and solely for the
benefit of the Holders thereof, Article Twelve of the
Original Indenture will be amended by the replacement of
Section 12.1 in its entirety with the provisions set forth
below. Such amended and additional provisions shall apply
only to the Senior Notes except to the extent specifically
made applicable to any other series of Securities by the
Board Resolution, Officers' Certificate or supplemental
indenture establishing such series of Securities as provided
for in Section 2.3 of the Original Indenture.
"SECTION 12.1 Right of Optional Redemption. Any series
of Senior Notes may be redeemed at the option of the Issuer,
at any time, as a whole or in part, upon not less than 30
nor more than 60 days' notice by mail in accordance with
Section 12.2, at a Redemption Price determined separately
for the Securities of each such series equal to the greater
of (i) 100% of the principal amount of the Securities to be
redeemed and (ii) the sum of the present values of the
remaining scheduled payments of principal and interest
thereon discounted to the Redemption Date on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate for such series plus 30 basis
points, plus in each case accrued interest thereon, if any,
to the Redemption Date. The Redemption Price calculated as
aforesaid, shall be set forth in an Officers' Certificate
delivered to the Trustee no later than two Business Days
prior to the Redemption Date. Any notice of redemption
given pursuant to Section 12.2 with respect to the foregoing
redemption need not set forth the Redemption Price but need
only set forth the manner of calculation thereof."
ARTICLE EIGHT
RIGHT OF REPAYMENT
For purposes of the 2026 Notes, and solely for the
benefit of the Holders thereof, Article Eleven of the
Original Indenture shall be amended by adding thereto the
following additional provisions set forth below. Such
provisions shall apply only to the 2026 Notes except to the
extent specifically made applicable to any other series of
Securities by the Board Resolutions, Officers' Certificate
or supplemental indenture establishing such series of
Securities as provided for in Section 2.3 of the Original
Indenture.
"SECTION 11.13 Right of Repayment. Any 2026 Note shall
be repaid at the option of the Holder thereof on November
15, 2003 (the "Repurchase Date") at 100% of its principal
amount plus accrued interest to November 15, 2003. In order
for a 2026 Note to be repaid on the Repurchase Date pursuant
to this Section 11.13, the Issuer must receive, at its
office or agency in New York, New York maintained for such
purpose pursuant to Section 3.2 hereof, no earlier than
September 15, 2003 and no later than 5:00 p.m. (New York
City Time) on October 15, 2003 (or if October 15, 2003 is
not a Business Day, the next succeeding Business Day), (a)
appropriate wire instructions directing a wire transfer to
an account with a banking institution located in the United
States of America (which may be included in the form
entitled "Option to Elect Repayment on November 15, 2003")
and (b) either (i) the 2026 Note with the form entitled
"Option to Elect Repayment on November 15, 2003" (a form of
which is set forth in Section 11.14 hereof) attached to the
2026 Note duly completed or (ii) a telegram, telex,
facsimile transmission or letter from a member of a national
securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or trust
company in the United States setting forth the name of the
Holder of such 2026 Note, the principal amount of such 2026
Note, the portion of the principal amount of such 2026 Note
to be repaid, the certificate number or a description of the
tenor and terms of such 2026 Note, a statement that the
option to elect repayment is being exercised thereby and a
guarantee that such 2026 Note to be repaid with the form
entitled "Option to Elect Repayment on November 15, 2003"
attached to such 2026 Note duly completed will be received
by the Issuer not later than five Business Days after the
date of such telegram, telex, facsimile transmission or
letter, and such 2026 Note and form duly completed must be
received by the Issuer by such fifth Business Day. Any
notice of exercise of the repayment option by the Holder of
such 2026 Note received by the Issuer after September 15,
2003 and before 5:00 p.m. (New York City Time) October 15,
2003 shall be irrevocable.
The repayment option may be exercised by the Holder of
such 2026 Note for less than the entire principal amount of
the 2026 Note held by such Holder provided that the
principal amount of the 2026 Note remaining Outstanding
after repayment pursuant to this Section 11.13 is an
authorized denomination. No registration of, transfer or
exchange of such 2026 Note (or, in the event that such 2026
Note is to be repaid in part, the portion of the 2026 Note
to be repaid) will be permitted after exercise of a
repayment option. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance of
any 2026 Note for repayment will be determined by the
Issuer, whose determination will be final, binding and non-
appealable.
As long as the 2026 Notes are represented by a
Registered Global Security, the Depositary or the
Depositary's nominee will be the only entity that can
exercise a right to repayment pursuant to this Section 11.13
and thereby give sufficient notice of such an exercise to
the Issuer as provided in this Section 11.13. Participants
or owners of beneficial interests in the 2026 Notes
represented by such Registered Global Security must give
notice of their desire to exercise the option to elect
repayment with respect to all or a portion of beneficial
interests owned by such participant or beneficial owner in
the 2026 Notes represented by such Registered Global
Security to the Depositary in accordance with the
Depositary's procedures on a form required by the Depositary
and provided by the Depositary to its participants. Neither
the Issuer nor the Trustee shall be liable for any delay in
delivering of notice to the Depositary by the participants
or owners of beneficial interests in the 2026 Notes
represented by the Registered Global Security."
"SECTION 11.14 Form of Option to Elect Repayment
The following text shall be attached to each 2026 Note:
FORM OF OPTION TO ELECT REPAYMENT ON NOVEMBER 15, 2003
I or we hereby irrevocably elect to exercise the option
to have the principal sum of $________, together with
accrued interest thereon to November 15, 2003 repaid by the
Issuer on November 15, 2003. (If less than the entire
principal amount of this Security is to be repaid, specify
the denomination or denominations (which shall be in
authorized denominations) of the Securities to be issued to
the Holder for the portion of the within Security not being
repaid (in the absence of any such specification, one such
Security will be issued for the portion not being repaid)).
Dated:
Signed: Signature Guarantee:
(Signature must
be guaranteed
by an eligible
institution within
the meaning of
Rule 17A(d)-15
under the
Securities Exchange
Act of 1934, as
amended)
Wire Transfer Instructions:
________________________
________________________
________________________
ARTICLE NINE
MISCELLANEOUS
SECTION 9.1. The Indenture, as supplemented and
amended by this First Supplemental Indenture, is in all
respects hereby adopted, ratified and confirmed.
SECTION 9.2. Paying Agent, Transfer Agent and
Registrar. The Issuer hereby appoints the Trustee as paying
agent, transfer agent and registrar for the Senior Notes and
designates the Corporate Trust Office of the Trustee as the
agency where notices and demands to or upon the Issuer in
respect of the Senior Notes or the Indenture may be served.
SECTION 9.3. Governing Law. This First Supplemental
Indenture and each Senior Note shall be deemed to be a
contract under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws
of such state without regard to conflicts of laws principles
thereof, except as may otherwise be required by mandatory
provisions of law.
SECTION 9.4. Counterparts. This First Supplemental
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 9.5. Trustee Disclaimer. The recitals
contained herein shall be taken as the statements of the
Issuer, and the Trustee assumes no responsibility for the
correctness of same. The Trustee makes no representations
as to the validity of this First Supplemental Indenture.
FMI\10318.5
IN WITNESS WHEREOF the parties hereto have caused this
First Supplemental Indenture to be duly executed, and the
appropriate corporate seals to be hereunto affixed and
attested, all as of November 18, 1996.
FREEPORT-McMoRan COPPER & GOLD
INC.
By:
R. Foster Duncan
[CORPORATE SEAL] Vice President and
Treasurer
Attest:
By:
Michael C. Kilanowski, Jr.
Secretary
THE CHASE MANHATTAN BANK, as
Trustee
By:
P. Morabito
[CORPORATE SEAL] Vice President
Attest:
By:
Gregory P. Shea
Assistant Vice President
FMI\10318.5
STATE OF LOUISIANA )
) ss:
PARISH OF ORLEANS )
On this 18th day of November, 1996, before me personally
came R. Foster Duncan, to me personally known, who, being by
me duly sworn, did depose and say that he resides at 1442
Webster, New Orleans, Louisiana, that he is a Vice President
and Treasurer of Freeport-McMoRan Copper & Gold Inc., one of
the corporations 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 )
) ss:
COUNTY OF NEW YORK )
On this 18th day of November, 1996 before me personally
came P. Morabito, to me personally known, who, being by me
duly sworn, did depose and say that she resides at 60
Kinglet Drive South, Cranbury, New Jersey, that she is a
Vice President of The Chase Manhattan Bank, one of the
corporations which executed the above instrument; that she
knows the seal of said corporation; that the seal affixed to
said instrument is such seal; that it was so affixed by
authority of the Board of Directors of said corporation, and
that she signed his name thereto by like authority.
[NOTARIAL SEAL]
Notary Public
FMI\10318.5
EXHIBIT A
[FORM OF FACE OF 2006 NOTE]
This Security is a Registered Global Security within the
meaning of the Indenture hereinafter referred to and is
registered in the name of The Depository Trust Company, a
New York corporation ("DTC") or a nominee thereof. This
Security may not be exchanged in whole or in part for a
Security in definitive registered form, and no transfer of
this Security in whole or in part may be registered in the
name of any Person other than DTC or its nominee, except in
the limited circumstances described in the Indenture.
Unless this Senior Note is presented by an authorized
representative of DTC to the Issuer (as defined below) or
its agent for registration of transfer, exchange, or
payment, and any certificate issued is registered in the
name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein.
FREEPORT-McMoRan COPPER & GOLD INC.
7.50% Senior Note Due 2006
No. _____________ $__________ CUSIP No.:
_______
Freeport-McMoRan Copper & Gold Inc., a Delaware
corporation (hereinafter called the "Issuer," which term
shall include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby
promises to pay to Cede & Co. or registered assigns, the
principal sum of $200,000,000 Dollars at the Issuer's office
or agency for said purpose in the Borough of Manhattan, the
City of New York on November 15, 2006, in such 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, and to pay the interest thereon in like coin
or currency semi-annually on May 15 and November 15 of each
year, commencing with May 15, 1997, on said principal sum at
the rate of 7.50% per annum at said office or agency from
November 18, 1996 or from the most recent interest payment
date to which interest on this Senior Note has been paid or
duly provided for until payment of said principal sum has
been made or duly provided for. The interest so payable on
any May 15 or November 15 will, except as otherwise provided
in the Indenture referred to on the reverse hereof, be paid
to the Person in whose name this Senior Note is registered
at the close of business on the April 30 or October 31
preceding such May 15 or November 15, whether or not such
day is a Business Day; provided that interest may be paid,
at the option of the Issuer, if this Senior Note is no
longer in the form of a Registered Global Security, by
mailing a check therefor payable to the registered holder
entitled thereto at his last address as it appears on the
Security register. Interest on this Senior Note shall be
computed on the basis of a 360-day year consisting of twelve
30-day months.
ADDITIONAL PROVISIONS OF THIS SECURITY ARE CONTAINED ON THE
REVERSE HEREOF AND SUCH PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS
PLACE.
This Security shall not be entitled to any benefit under
the Indenture hereinafter referred to, or become valid or
obligatory for any purpose, until the Trustee under the
Indenture shall have signed the form of certificate of
authentication endorsed hereon.
In Witness Whereof, Freeport-McMoRan Copper & Gold Inc.
has caused this Instrument to be duly executed.
Dated:
FREEPORT-McMoRan COPPER & GOLD
INC.
By:
[CORPORATE SEAL]
Name:
Title:
This is one of the Securities of the series
designated herein referred to in the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK, Trustee
By:
Authorized Officer
<PAGE>
[FORM OF REVERSE OF 2006 NOTE]
FREEPORT-McMoRan COPPER & GOLD INC.
7.50% Senior Note due 2006
This Security is one of a duly authorized issue of debt
securities of the Issuer designated as its 7.50% Senior
Notes Due 2006 (the "Securities"), limited to the aggregate
principal amount of $200,000,000 (except as otherwise
provided in the Indenture mentioned below), issued or to be
issued pursuant to an indenture dated as of November 15,
1996, duly executed and delivered by the Issuer to The Chase
Manhattan Bank, as trustee (herein called the "Trustee") as
the same has been amended and supplemented by the First
Supplemental Indenture, dated as of November 18, 1996,
between the Issuer and the Trustee, and as the same shall be
further amended and supplemented from time to time as
provided in the Indenture (as so amended and supplemented,
the "Indenture"). The terms of the Securities include those
in the Indenture. Reference is hereby made to the
Indenture, the First Supplemental Indenture and all other
indentures supplemental thereto for a description of the
rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Issuer and the
Holders (the words "Holders" or "Holder" meaning the
registered holders or registered holder) of the Securities.
Capitalized terms used but not defined herein which are
defined in the Indenture have the meanings assigned to them
in the Indenture.
In case an Event of Default, as defined in the Indenture
with respect to the Securities, shall have occurred and be
continuing, the principal of and accrued and unpaid
interest, if any, through the date of the declaration of
acceleration on, all the Securities, may be declared due and
payable in the manner and with the effect, and subject to
the conditions, provided in the Indenture. The Indenture
provides that in certain events such declaration and its
consequences may be waived by the Holders of a majority in
aggregate principal amount of the Securities then
Outstanding and that, prior to any such declaration, such
Holders may waive any past default under the Indenture and
its consequences except a default in the payment of
principal of or interest on any of the Securities and except
a default in respect of certain covenants or other
provisions of the Indenture which may not be modified
without the consent of each Holder of an outstanding
Security. Any such consent or waiver by the Holder of this
Security (unless revoked as provided in the Indenture) shall
be conclusive and binding upon such Holder and upon all
future Holders and owners of this Security and any Security
which may be issued in exchange or substitution hereof or
upon registration of transfer hereof, whether or not any
notation thereof is made upon this Security or such other
Securities. Holders may not enforce the Indenture or the
Securities except as provided in the Indenture.
The Indenture permits the Issuer and the Trustee, with
the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities, at the time
Outstanding, evidenced as in the Indenture provided, to
execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or
modifying in any manner the rights of the Holders of the
Securities; provided, that no such supplemental indenture
shall: (a) change the final maturity of any Security or
change the time for payment of any installment of interest
thereon, 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 change
the time of payment thereof, or make the principal thereof
or interest thereon payable in any coin or currency other
than that provided in such Security or in accordance with
the terms thereof, or reduce the amount of principal that
would be due or payable upon an acceleration of the maturity
thereof pursuant to Section 5.1 of the Indenture or the
amount thereof provable in bankruptcy pursuant to Section
5.2 of the Indenture, or alter the provisions of Section
11.1 or 11.12 of the Indenture, or impair or affect the
right of any Holder to institute suit for the payment
thereof, in each case without the consent of the Holder of
each Security so affected, provided no consent of any Holder
shall be necessary to permit the Trustee and the Issuer to
execute supplemental indentures pursuant to Section 8.1(e)
of the Indenture; or (b) reduce the percentage of principal
amount of Securities the consent of the Holders of which is
required for any such supplemental indenture to less than a
majority, or reduce the percentage of principal amount of
Securities necessary to consent to waive any past Default
under this Indenture to less than a majority, or modify any
of the provisions of Section 8.2 or Section 5.10 of the
Indenture, except to increase any such percentage or to
provide that certain other provisions of the Indenture
cannot be modified or waived, without the consent of the
Holder of each Security so affected, in each case, without
the consent of the Holder of each Security so affected.
The Securities do not have the benefit of any sinking
fund obligation.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and
unconditional, to pay the principal of and interest on this
Security at the place, times, and rate, and in the currency,
herein prescribed.
The Securities are issuable only as registered
Securities without coupons in denominations of $1,000 and
any integral multiple of $1,000.
At the office or agency of the Issuer referred to on the
face hereof and in the manner and subject to the limitations
provided in the Indenture, the Securities may be exchanged
for a like aggregate principal amount of Securities of other
authorized denominations.
Upon surrender for registration of transfer of this
Security at the above-mentioned office or agency of the
Issuer, a new Security or Securities of other authorized
denominations, for a like aggregate principal amount, will
be issued to the transferee as provided in the Indenture.
No service charge shall be made for any such transfer, but
the Issuer may require payment of a sum sufficient to cover
any tax, assessment or other governmental charge that may be
imposed in relation thereto.
The Securities of this series are subject to redemption,
as a whole or in part, at any time, at the option of the
Issuer, upon not less than 30 nor more than 60 days' notice
by mail, at a redemption price equal to the greater of (i)
100% of the principal amount of the Securities to be
redeemed and (ii) the sum of the present values of the
remaining scheduled payments of principal and interest
thereon discounted to the redemption date on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 30 basis points, plus
accrued interest thereon to the date of redemption.
Subject to payment by the Issuer of a sum sufficient to
pay the amount due on redemption, interest on this Security
shall cease to accrue upon the date duly fixed for
redemption of this Security.
In the event of redemption under the circumstances
permitted by the Indenture of this Security in part only, a
new Security or Securities for the unredeemed portion
thereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
Prior to surrender of this Security for registration of
transfer, the Issuer, the Trustee and any agent of the
Issuer or the Trustee, may deem and treat the registered
Holder hereof as the absolute owner of this Security
(whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing
hereon), for the purpose of receiving payment of, or on
account of, the principal hereof and interest hereon and
for all other purposes, and neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the
principal of or interest on this Security, for any claim
based hereon or thereon, or otherwise in respect hereof or
thereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator,
shareholder, 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 any constitution, statute or rule of
law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue
hereof, expressly waived and released.
The Indenture and this Security shall be governed by and
construed in accordance with the laws of the State of New
York.
<PAGE>
EXHIBIT B
[FORM OF FACE OF 2026 NOTE]
This Security is a Registered Global Security within the
meaning of the Indenture hereinafter referred to and is
registered in the name of The Depository Trust Company, a
New York corporation ("DTC") or a nominee thereof. This
Security may not be exchanged in whole or in part for a
Security in definitive registered form, and no transfer of
this Security in whole or in part may be registered in the
name of any Person other than DTC or its nominee, except in
the limited circumstances described in the Indenture.
Unless this Senior Note is presented by an authorized
representative of DTC to the Issuer (as defined below) or
its agent for registration of transfer, exchange, or
payment, and any certificate issued is registered in the
name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein.
FREEPORT-McMoRan COPPER & GOLD INC.
7.20% Senior Note Due 2026
No. _____________ $__________ CUSIP No.:
_______
Freeport-McMoRan Copper & Gold Inc., a Delaware
corporation (hereinafter called the "Issuer," which term
shall include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby
promises to pay to Cede & Co. or registered assigns, the
principal sum of $250,000,000 Dollars at the Issuer's office
or agency for said purpose in the Borough of Manhattan, the
City of New York on November 15, 2026, in such 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, and to pay the interest thereon in like coin
or currency semi-annually on May 15 and November 15 of each
year, commencing with May 15, 1997, on said principal sum at
the rate of 7.20% per annum at said office or agency from
November 18, 1996 or from the most recent interest payment
date to which interest on this Senior Note has been paid or
duly provided for until payment of said principal sum has
been made or duly provided for. The interest so payable on
any May 15 or November 15 will, except as otherwise provided
in the Indenture referred to on the reverse hereof, be paid
to the Person in whose name this Senior Note is registered
at the close of business on the April 30 or October 31
preceding such May 15 or November 15, whether or not such
day is a Business Day; provided that interest may be paid,
at the option of the Issuer, if this Senior Note is no
longer in the form of a Registered Global Security, by
mailing a check therefor payable to the registered holder
entitled thereto at his last address as it appears on the
Security register. Interest on this Senior Note shall be
computed on the basis of a 360-day year consisting of twelve
30-day months.
ADDITIONAL PROVISIONS OF THIS SECURITY ARE CONTAINED ON THE
REVERSE HEREOF AND SUCH PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS
PLACE.
This Security shall not be entitled to any benefit under
the Indenture hereinafter referred to, or become valid or
obligatory for any purpose, until the Trustee under the
Indenture shall have signed the form of certificate of
authentication endorsed hereon.
In Witness Whereof, Freeport-McMoRan Copper & Gold Inc.
has caused this Instrument to be duly executed.
Dated:
FREEPORT-McMoRan COPPER & GOLD INC.
By:
[CORPORATE SEAL]
Name:
Title:
This is one of the Securities of the series
designated herein referred to in the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK, Trustee
By:
Authorized Officer
<PAGE>
[FORM OF REVERSE OF 2026 NOTE]
FREEPORT-McMoRan COPPER & GOLD INC.
7.20% Senior Note due 2026
This Security is one of a duly authorized issue of debt
securities of the Issuer designated as its 7.20% Senior
Notes Due 2026 (the "Securities"), limited to the aggregate
principal amount of $250,000,000 (except as otherwise
provided in the Indenture mentioned below), issued or to be
issued pursuant to an indenture dated as of November 15,
1996, duly executed and delivered by the Issuer to The Chase
Manhattan Bank, as trustee (herein called the "Trustee") as
the same has been amended and supplemented by the First
Supplemental Indenture, dated as of November 18, 1996,
between the Issuer and the Trustee, and as the same shall be
further amended and supplemented from time to time as
provided in the Indenture (as so amended and supplemented,
the "Indenture"). The terms of the Securities include those
in the Indenture. Reference is hereby made to the
Indenture, the First Supplemental Indenture and all other
indentures supplemental thereto for a description of the
rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Issuer and the
Holders (the words "Holders" or "Holder" meaning the
registered holders or registered holder) of the Securities.
Capitalized terms used but not defined herein which are
defined in the Indenture have the meanings assigned to them
in the Indenture.
In case an Event of Default, as defined in the Indenture
with respect to the Securities, shall have occurred and be
continuing, the principal of and accrued and unpaid
interest, if any, through the date of the declaration of
acceleration on, all the Securities, may be declared due and
payable in the manner and with the effect, and subject to
the conditions, provided in the Indenture. The Indenture
provides that in certain events such declaration and its
consequences may be waived by the Holders of a majority in
aggregate principal amount of the Securities then
Outstanding and that, prior to any such declaration, such
Holders may waive any past default under the Indenture and
its consequences except a default in the payment of
principal of or interest on any of the Securities and except
a default in respect of certain covenants or other
provisions of the Indenture which may not be modified
without the consent of each Holder of an outstanding
Security. Any such consent or waiver by the Holder of this
Security (unless revoked as provided in the Indenture) shall
be conclusive and binding upon such Holder and upon all
future Holders and owners of this Security and any Security
which may be issued in exchange or substitution hereof or
upon registration of transfer hereof, whether or not any
notation thereof is made upon this Security or such other
Securities. Holders may not enforce the Indenture or the
Securities except as provided in the Indenture.
The Indenture permits the Issuer and the Trustee, with
the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities, at the time
Outstanding, evidenced as in the Indenture provided, to
execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or
modifying in any manner the rights of the Holders of the
Securities; provided, that no such supplemental indenture
shall: (a) change the final maturity of any Security or
change the time for payment of any installment of interest
thereon, 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 change
the time of payment thereof, or make the principal thereof
or interest thereon payable in any coin or currency other
than that provided in such Security or in accordance with
the terms thereof, or reduce the amount of principal that
would be due or payable upon an acceleration of the maturity
thereof pursuant to Section 5.1 of the Indenture or the
amount thereof provable in bankruptcy pursuant to Section
5.2 of the Indenture, or alter the provisions of Section
11.1 or 11.12 of the Indenture, or impair or affect the
right of any Holder to institute suit for the payment
thereof or the repayment thereof at the option of the
Holder, in each case without the consent of the Holder of
each Security so affected, provided no consent of any Holder
shall be necessary to permit the Trustee and the Issuer to
execute supplemental indentures pursuant to section 8.1(e)
of the Indenture; or (b) reduce the percentage of principal
amount of Securities the consent of the Holders of which is
required for any such supplemental indenture to less than a
majority, or reduce the percentage of principal amount of
Securities necessary to consent to waive any past Default
under this Indenture to less than a majority, or modify any
of the provisions of Section 8.2 or Section 5.10 of the
Indenture, except to increase any such percentage or to
provide that certain other provisions of the Indenture
cannot be modified or waived, without the consent of the
Holder of each Security so affected, in each case, without
the consent of the Holder of each Security so affected.
The Securities do not have the benefit of any sinking
fund obligation.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and
unconditional, to pay the principal of and interest on this
Security at the place, times, and rate, and in the currency,
herein prescribed.
The Securities are issuable only as registered
Securities without coupons in denominations of $1,000 and
any integral multiple of $1,000.
At the office or agency of the Issuer referred to on the
face hereof and in the manner and subject to the limitations
provided in the Indenture, the Securities may be exchanged
for a like aggregate principal amount of Securities of other
authorized denominations.
Upon surrender for registration of transfer of this
Security at the above-mentioned office or agency of the
Issuer, a new Security or Securities of other authorized
denominations, for a like aggregate principal amount, will
be issued to the transferee as provided in the Indenture.
No service charge shall be made for any such transfer, but
the Issuer may require payment of a sum sufficient to cover
any tax, assessment or other governmental charge that may be
imposed in relation thereto.
The Securities of this series are subject to redemption,
as a whole or in part, at any time, at the option of the
Issuer, upon not less than 30 nor more than 60 days' notice
by mail, at a redemption price equal to the greater of (i)
100% of the principal amount of the Securities to be
redeemed and (ii) the sum of the present values of the
remaining scheduled payments of principal and interest
thereon discounted to the redemption date on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 30 basis points, plus
accrued interest thereon to the date of redemption.
Subject to payment by the Issuer of a sum sufficient to
pay the amount due on redemption, interest on this Security
shall cease to accrue upon the date duly fixed for
redemption of this Security.
In the event of redemption under the circumstances
permitted by the Indenture of this Security in part only, a
new Security or Securities for the unredeemed portion
thereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
This Security may be repaid on November 15, 2003, at the
option of the Holder of this Security, at 100% of the
principal amount, together with accrued interest thereon to
November 15, 2003. In order for a Holder to exercise this
option, the Issuer must receive at its office or agency in
New York, New York maintained for such purpose pursuant to
Section 3.2 of the Indenture, during the period beginning on
September 15, 2003 and ending at 5:00 p.m. (New York City
time) on October 15, 2003 (or if October 15, 2003 is not a
Business Day, the next succeeding Business Day), (a)
appropriate wire instructions directing a wire transfer to
an account with a banking institution located in the United
States of America (which may be included in the form
entitled "Option to Elect Repayment on November 15, 2003")
and (b) either (i) this Security with the form entitled
"Option to Elect Repayment on November 15, 2003" set forth
below duly completed or (ii) a telegram, telex, facsimile
transmission or letter from a member of a national
securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or trust
company in the United States setting forth the name of the
Holder of this Security, the principal amount of this
Security, the portion of the principal amount of this
Security to be repaid, the certificate number or a
description of the tenor and terms of this Security, a
statement that the option to elect repayment is being
exercised thereby and a guarantee that this Security to be
repaid with the form entitled "Option to Elect Repayment on
November 15, 2003" attached to this Security duly completed
will be received by the Issuer not later than five Business
Days after the date of such telegram, telex, facsimile
transmission or letter, and this Security and form duly
completed must be received by the Issuer by such fifth
Business Day. Any such notice received by the Issuer during
the period beginning on September 15, 2003 and ending at
5:00 p.m. (New York City Time) on October 15, 2003 shall be
irrevocable. The repayment option may be exercised by the
Holder of this Security for less than the entire amount of
the Securities held by such Holder, as long as the principal
amount that is to be repaid is equal to $1,000 or an
integral multiple of $1,000. All questions as to validity,
form, eligibility (including time of receipt) and acceptance
of any Security for repayment will be determined by the
Issuer, whose determination will be final and binding.
Prior to surrender of this Security for registration of
transfer, the Issuer, the Trustee and any agent of the
Issuer or the Trustee, may deem and treat the registered
Holder hereof as the absolute owner of this Security
(whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing
hereon), for the purpose of receiving payment of, or on
account of, the principal hereof and interest hereon and
for all other purposes, and neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the
principal of or interest on this Security, for any claim
based hereon or thereon, or otherwise in respect hereof or
thereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator,
shareholder, 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 any constitution, statute or rule of
law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue
hereof, expressly waived and released.
The Indenture and this Security shall be governed by and
construed in accordance with the laws of the State of New
York.
FORM OF OPTION TO ELECT REPAYMENT ON NOVEMBER 15, 2003
I or we hereby irrevocably elect to exercise the option
to have the principal sum of $________, together with
accrued interest thereon to November 15, 2003 repaid by the
Issuer on November 15, 2003. (If less than the entire
principal amount of this Security is to be repaid, specify
the denomination or denominations (which shall be in
authorized denominations) of the Securities to be issued to
the Holder for the portion of the within Security not being
repaid (in the absence of any such specification, one such
Security will be issued for the portion not being repaid)).
Dated:
Signed: Signature Guarantee:
(Signature must be guaranteed
by an eligible institution within
the meaning of Rule 17A(d)-15
under the Securities Exchange
Act of 1934, as amended)
Wire Transfer Instructions:
________________________
________________________
________________________
November 12, 1996
Freeport McMoRan Copper & Gold Inc.
1615 Poydras Street
New Orleans, LA 70112
Gentlemen:
We are aware that Freeport McMoRan Copper & Gold Inc. has incorporated by
reference in its Registration Statement its Form 10-Q for the quarter
ended September 30, 1996, which includes our report dated October 22, 1996
covering the unaudited interim financial information contained therein.
Pursuant to Regulation C of the Securities Act of 1933, those reports are
not considered a part of the registration statement prepared or certified
by our firm or a report prepared or certified by our firm within the
meaning of Sections 7 and 11 of the Act.
Very truly yours,
/s/ Arthur Andersen LLP
Arthur Anderson LLP
